Volume 148 — Massachusetts Reports

<p>Bill in EQUITY, filed in the Superior Court on February 29, 1888, brought originally by John B. Smith against Amoz Smith, David Fisher, and George Huxford, commissioners appointed under the Pub. Sts. c. 189, to prevent them from keeping up the waters of Great Pond, and from lowering the waters of Job’s Neck Pond, both situated in Edgartown. Hearing before Dunbar, J., who reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Intoxicating Liquors — Common Nuisance — Cider or Native Wines — Evidence — Unwilling Witness.</p> <p>On the issue whether a defendant, charged with keeping a common nuisance under the Pub. Sts. c. 101, §§ 6, 7, sold cider or native wine to be drunk on the premises, there was evidence that the place was one of common resort, and that during the time alleged sales of such liquors were made on the premises. The government was then permitted to introduce evidence that on other occasions during the same time such liquors were drunk on the premises by various persons who were not seen to make any payment therefor, as well as to put leading questions to unwilling witnesses called by it as to their drinking or obtaining cider upon the premises, of which there was no evidence and the answers to which did not appear. Held, that the defendant had no ground of exception.</p>

Complaint for keeping and maintaining a “ common nuisance, to wit, a building, to wit, a tenement in building No. 136, on Essex Street,” in Lawrence, used for the illegal keeping and illegal sale of intoxicating liquors.

<p>Two COMPLAINTS for unlawfully selling intoxicating liquors to minors.</p> <p>At the trial in the Superior Court, before Sherman, J., there was evidence tending to show that the alleged sales were made to the minors at about the same time, in the defendant’s barroom, which was a front room on the lower floor of a dwelling-house ; that in the rear of the house was a kitchen, separated from the bar-room by an entry, out of which doors opposite each other led into the bar-room and the kitchen; that the defendant was a married woman, who lived with her husband in the dwelling-house; that at the time of the sales the husband was not in the bar-room, and was not seen by either minor, but was at the time in the kitchen, one of the doors between it and the bar-room being closed.</p> <p>The defendant requested the judge to instruct the jury: “1. If the defendant sold the intoxicating liquor in the presence of her husband, it is a presumption of law that she acted under the coercion and control of her husband. And this is a conclusive presumption, unless overthrown by affirmative evidence. 2. In order to establish that the sales were made in the presence of the husband, it is not necessary to show that the sales were made in his sight, or that he was in the room where they were made, but if he was on the premises and in the house it would be sufficient. 3. There is no evidence in the case sufficient to control the presumption that the defendant at the time she made the sales was acting under the coercion and control of her husband.”</p> <p>The judge declined so to instruct, and the defendant excepted to his refusal to rule as requested. The judge, among other things, gave the following instruction, to which no exception was taken: “ If you should be satisfied beyond a reasonable doubt, from the evidence, that the defendant made the sales of intoxicating liquor as alleged in the presence of her husband, or while he was near enough to see, hear, or know that she was making such sales, then she is presumed to be acting under his coercion, and she is not liable, and must be acquitted. If the husband was away at the time, not in the house or upon the premises, then the presumption of coercion does not apply.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint for keeping and maintaining at Cambridge a “common nuisance, to wit, a tenement situate in said Cambridge ” used for the illegal sale and illegal keeping of intoxicating liquors. Trial in the Superior Court, on appeal, before Hammond, J., who allowed a bill of exceptions in substance as follows.

Complaint to the “ Municipal Court of the Dorchester district of the city of Boston holden at said district for the transaction of criminal business within the county of Suffolk,” alleging that the defendant, on February 12, 1888, “ at Boston aforesaid and within the judicial district of said court, unlawfully did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, the said Gillon not having then and there any…

<p>Contbact for breach of an agreement to employ the plaintiff, an attorney at law, to prosecute a claim before the Court of Commissioners of Alabama Claims. At the trial in the Superior Court, without a jury, before Pitman, J., the following facts were admitted or appeared in evidence.</p> <p>On June 21, 1882, the defendant, at the plaintiff’s office in Boston, executed a power of attorney authorizing him to prosecute a claim for damages occasioned to the defendant by the destruction of the ship Marshall by Confederate cruisers, and “ to receive whatever may be awarded on said claim, or paid on account thereof, and give in my name proper acquittances therefor, and to do any other lawful act that may be necessary to secure the payment of the said claims, or any part thereof.” At the same time, and as part of the same transaction, the defendant signed the agreement in question, which recited that the defendant promised and agreed “to allow and pay to Jerome F. Manning, or his order, executors, administrators, or assigns, an amount of money equal to nine (9) per centum of any sum or sums of money awarded, decreed, and paid ” by the government of the United States, or of any tribunal thereby authorized, on account of such claim, and concluded as follows: “ This is in consideration of certain expenses and services by the said J. F. Manning, or his order, to which we hereby bind ourselves, our executors, administrators, and assigns. No payment is due and payable to the said J. F. Manning, his order, executors, administrators, or assigns, until the amount is awarded and decreed to me, on said claim or claims, by the said government, or on its order or account; and this payment, when due and payable to said attorney, is made a first lien on the award and decree therein.”</p> <p>After the performance of certain preliminary services by the plaintiff, in pursuance of the agreement, the defendant refused to sign a petition, prepared by the plaintiff, to the Court of Commissioners of Alabama Claims, and notified the plaintiff that he had employed other attorneys to prosecute the claim. Subsequently such attorneys filed a petition on behalf of the defendant for such damages in that court, and an award was made to the defendant for a considerable sum.</p> <p>The judge refused to rule, as requested by the defendant, that the agreement was champertous, but ruled that it was valid and binding; and found for the plaintiff. The defendant alleged exceptions.</p>

<p>Tort. The last count of the declaration was as follows: “And the plaintiff says that she was in the employ of the defendant; that it was the duty of the defendant to give her sufficient instructions how to properly perform her duties as such employee; that it was the duty of the defendant to give her sufficient notice of the dangers and perils incident to her duties as such employee; that the defendant had reason to know of such perils and dangers; that the defendant failed to give her such instructions and such notice, whereby the plaintiff, while in the exercise of due care and diligence, was injured, and suffered great hurt of body and anguish of mind.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., the plaintiff testified that she was thirteen years old when she began work in the defendant’s mill; that her work was upon spinning frames, and her duties were “to piece up ends,” “keep the roping in,” and “to clean up”; that she was injured while attempting to clean a wheel at the end of the spinning frame, by catching her finger between one of the spokes of the wheel and the end of the frame; that the accident happened after she had been in the defendant’s employment for four weeks, and when for the first time she tried to clean the machine when the power was on; that she was attempting to clean the wheel by doing as she had seen the other help do; that the proper way to clean the wheel was to wipe one spoke at a time with a piece of waste, and in order to bring the spokes into position to be wiped, it was necessary to give the wheel a partial revolution each time, by means of a peculiar movement of the shipper above the frame; that she had never been told how to clean the wheel upon which she was hurt, and had never been instructed how to give this peculiar motion, to the shipper in order to secure a partial revolution of the wheel; that all she knew about it was what she had seen other girls do; that she knew no other way by which to clean the machine than the way she tried; that she supposed that by giving the wheel a partial revolution it would stop and leave the spoke in proper position to be wiped; that she tried to start the wheel a little bit, but it went too fast and too far; and that she knew the wheel must be still to wipe it, and thought she could get off a little piece of waste while the wheel was going.</p> <p>On cross-examination, the plaintiff testified that she had been with a girl named Maggie Coulter for a week and a half to learn how to run, a spinning frame; that she was then given a frame to run by the second hand of the room, then two frames, and after-wards, before the accident, three frames; that she knew that a part of her work consisted in cleaning the machines, which involved stopping and starting them, that she knew the machines were never cleaned when they were running, and that there was no trouble in cleaning them when they were still; that just before the accident she had taken a piece of waste in her hand to wipe the spokes of the wheel; that she stopped the wheel, wiped one of the spokes, and started up the wheel to bring another spoke into position to be wiped; that there was a bit of waste on the spoke, and she tried to pick it off after the' wheel started to revolve, thinking she could do it while the wheel was in motion; that she touched the spoke and her finger was caught; and that she had stopped and started her frames a good many times, and had cleaned them all partially, but had never tried to clean the wheel upon which she was hurt until the day she was injured..</p> <p>Maggie Coulter and the second hand testified that the plaintiff was given full and accurate instructions how to do all parts of the work required of her, including cleaning the machines and stopping and starting them; that the plaintiff was a very bright girl, and did her work correctly and well; and that the plaintiff was repeatedly told not to touch any part of the machinery while it was in motion for the purpose of cleaning it.</p> <p>The jury viewed the premises.</p> <p>Upon this evidence the judge refused to rule that the plaintiff could not maintain her action, and submitted the case to the jury. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in September, 1888, and afterwards was submitted on the briefs to all the judges.</p>

<p>Indictment on the Pub. Sts. c. 202, § 29, alleging that the defendants, John Buckley and John Clune, on May 14, 1887, at Brockton, “ knowingly, wilfully, and maliciously did verbally threaten to accuse one Frank A. White, of Brockton aforesaid, of having wilfully and maliciously committed the crime of burning a building not his own, to wit, the store of John D. White, by words then and there knowingly, wilfully, and maliciously spoken of and to the said Frank A. White, substantially as follows: ‘You (meaning the said Frank A. White) are the man that set the fire, and unless you give us one hundred dollars we will make it hot for you. We will make a jail bird of you.’ With intent thereby then and there to extort money, to wit, the sum of one hundred dollars, from him, the said Frank A. White.”</p> <p>At the trial in the Superior Court, before Dunbar, J., John D. White and Frank A. White, who were called as witnesses by the government, gave testimony tending to prove the allegations of the indictment. The defendants thereupon offered in defence evidence tending to prove that the Whites set fire to the building described in the indictment, on the questions of intent, malice, and to impeach their credit as witnesses.</p> <p>There was evidence that the building alleged in the indictment to be the building of John D. White was owned by one Hall, and that White owned no part of it, but occupied it as a tenant for the purposes of a store until after the fire, when he removed his goods from the building. The defendants asked the judge to rule, that, “ as the indictment alleges that the building which the defendants threatened to accuse Frank A. White of burning was the property of John D. White, it must prove this allegation, and it will not be sufficient to prove that John D. White was in possession thereof at the time it was burned." The judge refused to give the instruction, and instructed the jury that the government was bound only to show that John D. White was in possession of the building as a tenant at the time of the fire.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

Petition to the Probate Court, by the administrator with the will annexed of the estate of Samuel Reed, for the construction of the will. The material clauses of the will were the following: “7th.

Contract to recover the proceeds of certain checks indorsed by the plaintiffs to the defendants. Trial in the Superior Court, before Pitman, J., who, after a verdict for the plaintiffs, reported the case for the determination of this court. The facts appear in the opinion.

<p>Petition to the Superior Court, for a jury to assess the damages caused by the taking by the respondent of land of the petitioner in Hull. Trial before Staples, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>On the issue as to how far a right of way appurtenant to the petitioner’s land affected its value, there was evidence that the land taken was a strip through a large tract of land owned by the petitioner, and known as the “ Loud pasture ”; that there was no building on the entire tract, and the only income which had been derived from the land was from letting it for pasturage purposes; that the tract did not abut on any highway, and that the only access to it from the highway was by means of a cart-way, through gates and bars, over the land of one Stearns, who owned the fee of such way. Stearns, who was called as a witness by the petitioner, testified that the way which led through a gate from the highway was an ancient cartway,—a right to cross his land. The husband of the petitioner testified that it was an ancient right of passage over the land of Stearns by prescription, that his wife had a right to it, and that it was an inherent right in the land. The above evidence was not contradicted, and the jury viewed the premises.</p> <p>The respondent asked the judge to instruct the jury, that, “ If the private way leading from this highway to the land of the petitioner, over the land of Stearns, had been through gates and bars, and for the passage of cattle to and from the pasture, and for such incidental uses only as would belong to a way leading to and from a pasture, then, if the character of the Fitz land changes from a pasture to building lots, the right to use that way as an open way, by occupants .of cottages erected on that land, would not be included in the rights of way as now existing.”</p> <p>The judge refused to give this instruction, saying: “ It states to my mind a hypothetical case, upon which the court is not called upon to express any opinion. I do not think that the effect of the evidence is that it was a way for the passage of cattle to and from the pasture, and such incidental uses only as belong to a way leading to or from a pasture.”</p> <p>The judge then instructed the jury, that it was for them to take this right of way as it appeared in evidence, and give it the effect, as an outlet from the petitioner’s land, to which it was. entitled ; that they were to consider the evidence in relation to it, and determine to what extent it could be used, and how its use was restricted, by the terms of its existence; that the right was appurtenant to the whole land, and every one who might own any part of it would have the right to the way for the purpose for which it might be used; that “it would be.as available, if a man.had a cottage-house there, for him to use it as a cartway, and for the purposes for which it is now used, as if he still had a pasture there ”; that the continued existence of the way did not depend upon the land remaining pasture land; that if the land should change from pasture land to cultivated land, or to land used for cottages, it “ must still be used under the same restrictions that now appertain to it, that the way must be used conformably to the character which it now bears, and I so instruct the jury, and leave them to say, upon their view of the way and upon the evidence in the case, what the use is ' and what the restrictions are ” ; and that, if a great many cottages should be built upon the petitioner’s land, “each one of them would have the right to use the way as an ancient passageway and as a cartway, just as the evidence characterized it and indicates it to be.”</p> <p>There was also evidence that the petitioner’s land was divided by the taking into two unequal parcels, and that no right of crossing the strip taken between these two parcels was reserved or had been secured by the respondent to the petitioner; and the judge refused to rule, as requested by the respondent, that the jury might take into account, in estimating the petitioner’s damages, the fact that at some time in the future a highway might be laid out across the railroad.</p> <p>The jury returned a verdict for the petitioner; and the respondent alleged exceptions.</p>

Contract on a bond dated October 23,1875, signed by Susan B. Winn, the former wife of the plaintiff, as principal, and by the defendant as surety, and containing the following condition: “ The condition of this obligation is such, that whereas, in a settlement of differences between said John Winn and Susan B. Winn, it was agreed by said Susan B. Winn, and on her behalf, that she should give to said John Winn a bond with surety ‘to release dower whenever requested, and make…

<p>Partition— Tenants in Common — Evidence—Will.</p> <p>On a petition for partition of laud formerly belonging to deceased tenants in common, the declarations of one tenant tending to show ownership in common, and made subsequent to the execution to him by his cotenant of a deed of his undivided interest, the delivery of which was denied, are competent against those claiming under him on the questions as to whether there was a delivery of the deed, and whether there was a reconveyance by a lost grant.</p> <p>Under the Pub. Sts. c. 178, §§ 11, 15, a person not named in a petition for partition of land, to entitle himself to appear and answer, after a trial upon the merits and the verdict of a jury, must first show that he has some estate or interest in the land.</p> <p>A testator by his will gave his lands to his wife, “reserving the following bequests subject to the approbation or rejection of my wife, S. A. F., of each and all of the following articles,” and by a later article provided that, "in case of the death of my wife, S. A. F., before my estate is settled, all that portion of my whole estate real and personal that would have been hers I bequeath and devise to my nieces.” A petition for partition of the lands was brought against the wife, who in her answer claimed to be the absolute and sole owner. Held, that the nieces took no such interest under the will as to entitle them to object to the partition.</p>

Tort, by the assignee in insolvency of one Whittier, for the conversion of certain articles of personal property. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort for personal injuries sustained by the plaintiff while in the defendant’s employment. Writ dated July 18,1887.</p> <p>At the trial in the Superior Court, before Staples, J., the plaintiff introduced evidence tending to show that he was employed by the defendant as a general laborer in its mill-yard, a part of his duty being to assist the defendant’s teamster, whose orders he had been told to obey; that on July 28, 1886, the day of the accident, the teamster, having been ordered by the defendant’s superintendent to move some new steps from the carpenter’s shop on the premises to the office door, directed his regular assistant and the plaintiff to help him; that the steps weighed from twelve hundred to fourteen hundred pounds, and four or five men had been necessary to carry a portion of them out of the shop; that the plaintiff, upon seeing the steps, remonstrated with the teamster for attempting to move them with only three men; that the teamster said that it must be done in accordance with the superintendent’s orders, and the plaintiff replied that he was as willing as the rest to do his part; that there were no tools or appliances about there to lift the steps with; that the plaintiff had never had anything to do with lifting, managing, or setting steps before; that, after an ineffectual attempt, the three men lifted the steps in order to put them on a low truck, when the teamster’s assistant lost his hold and they fell upon the plaintiff, causing the injuries; that when the steps were subsequently moved, seven or eight men were found necessary for that purpose; and that after the accident the superintendent said that he did not expect that the teamster would attempt to move the steps with so few men, as there were plenty of men about to help him do the work.</p> <p>The defendant introduced evidence, which was not contradicted, that the teamster, in loading and unloading his team, might, in addition to his regular assistant and the plaintiff, call upon eight other men in the employment of the defendant for assistance, all of whom, on the day of the accident, were within call, either in the yard or in the mill; and that there were at the same time on the premises tackle, rollers, bars, and all the other appliances necessary for the moving of heavy weights, belonging to the defendant and under the control of the teamster, which might have been used by him in handling the steps.</p> <p>Upon this evidence the judge ordered a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Contract by lessors against a lessee, to recover in part the cost of repairs made by them on the demised premises under an alleged agreement with the lessee. Trial in the Superior Court, before Lathrop, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The lease recited the demise by the plaintiffs to the defendant of the “ City Hotel, so called, situate in City Square in the city of Taunton, and comprising all the City Hotel building with the exception of the rooms therein used for stores and offices,” to be used as a hotel; and, after providing, among other things not material, that the lessee should pay a certain yearly rent in monthly instalments, concluded as follows:</p> <p>“ The lessors may enter to view and make improvements, and expel the lessee if he shall fail to pay the rent as aforesaid, or the percentage on repairs and improvements hereinafter mentioned, or make or suffer any strip or waste thereof. The lessee agrees that all repairs shall be made by him and at his expense, except as hereinafter provided. The lessors may make such repairs and improvements as the lessee shall agree to with them, which repairs and improvements shall be at the expense of the lessors, and the lessee agrees to pay to the lessors ten (10) per cent per annum on the cost of such repairs and improvements agreed on as aforesaid, the said ten per cent to be paid from the time said improvements and repairs are completed until the end of said term, and to be paid at the times reserved for payment of the rent as aforesaid.”</p> <p>Among the defences set up by the defendant was that of his eviction by the plaintiffs from the demised premises. The report of an auditor, to whom the case was referred to hear the parties, examine their vouchers, and state the accounts between them, passed upon the question of the defendant’s alleged eviction. The plaintiffs filed a motion that so much of the auditor’s report as referred to the alleged eviction should be stricken out. The judge overruled the motion, and, against the objection of the plaintiffs, admitted evidence on that question.</p> <p>It was agreed, or appeared from the auditor’s report, which was read in full to the jury, that at the date of the lease the City Hotel property comprised the City Hotel building and a lot of land, or yard, in the rear of that building; that there was no interior communication between that portion of the building used for a hotel and the stores therein mentioned in the lease; that the supplies for the hotel were brought to it through this yard, which was used for various purposes by the lessee and to some extent by the occupants of the stores, the latter using it, as the lessee contended, with his permission; and that after the lease was given the lessors erected a brick building over nearly the entire yard, leaving but a narrow passageway over the extreme edge of it to the rear of the hotel. The defendant, who continued without objection to occupy the hotel, and to pay his monthly instalments of rent as they accrued, and to use this passageway, contended that this yard passed to him under the lease, that the erection of this building in the yard was an eviction, and that his use of the passageway was under protest; and, under the ruling of the presiding judge, introduced much evidence to prove that his occupation and enjoyment of the estate were thereby interfered with, and that he was seriously damaged. The jury took a view of the leased premises, and the defendant called to their attention all the elements of damage relied on by him.</p> <p>The plaintiffs contended that, according to the true construction of the lease, the lot of land in the rear of the hotel building did not pass as part of the demised premises, but only that part of the building which constituted the City Hotel, with such easements in the yard or lot as were reasonably necessary to its enjoyment; that the erection of these stores did not constitute an eviction; that if it did, the defendant had waived the eviction by continuing in possession and paying rent; and that the defendant’s remedy, if his enjoyment of the demised premises had been interfered with, was by action for breach of the implied covenant, for quiet enjoyment.</p> <p>When the defendant’s testimony was substantially all in, the judge stated to counsel that he should rule that eviction did not constitute a defence in this case, and that — as the defendant admitted that if eviction was not a defence he was liable for the percentage on repairs to the amount of $4,000, and the plaintiffs contended that he was also liable for the percentage on a plumbing bill in addition amounting to $2,500, or $6,500 in all — the only question which would be submitted to the jury was that of amount, and that the verdict should be for the plaintiffs, either for the percentage on $4,000 or on $6,500, these amounts having been agreed upon by the parties. To this course of proceeding no objection was made by the plaintiffs’ counsel, and no testimony was offered by the plaintiffs in rebuttal of the defendant’s testimony as to the damage caused him by the encroachment of the building upon the yard. No comment was made by the defendant’s counsel in arguing the case to the jury upon the question of eviction, except to state that the question itself and all evidence pertaining to it had been ruled out of the case by the judge, and taken away from their consideration; but the defendant’s counsel argued that the defendant had nothing to do with the plumbing bill, and that the lessors put in the plumbing at their own expense, and agreed with the defendant to put it in at their own expense, or that they put it in without any agreement on the part of the defendant.</p> <p>The judge instructed the jury, that the defence of eviction was not open to the defendant; that “ for the purposes of this case we may lay out of the case entirely some of the questions on which evidence has been introduced to you, namely, the question whether this land passed to the defendant, and also the question whether he has been evicted from a portion of that land”; and submitted to them, as the only question in the case, “ whether the plumbing repairs were made by the plaintiffs under an agreement with the lessee.”</p> <p>The auditor’s report went to the jury with the other papers in the case, and neither side made any request as to what papers should go to the jury, nor was- the attention of the judge called to the matter at the time.</p> <p>The jury returned a verdict for the plaintiffs for ten per cent of $4,000; and the plaintiffs alleged exceptions to the above rulings.</p> <p>The following indorsement appeared upon the bill of exceptions, signed by the judge, under date of May 5, 1888:</p> <p>“ This bill of exceptions was settled before me on April 28, 1888, and signed by me, but at my request it was recopied and presented to me to-day for signature, after a motion for a new trial previously filed in the case had been argued. The defendant objected to the allowance of the exceptions, on the ground that the plaintiffs, having made and filed a motion to set aside the verdict, the ground of which is, that, as matter of law, the court did not sufficiently instruct the jury not to consider evidence of eviction as bearing upon the sole issue before them, and having fully argued this question of law before this court, they have waived the right to have their exceptions allowed. The motion for a new trial, a copy of which is annexed to this bill of exceptions, was, at my suggestion, argued before me after the exceptions. The defendant’s objection was overruled, and the exceptions allowed, and the defendant excepted.”</p> <p>The motion for a new trial annexed to the bill set out, among other grounds, the following :</p> <p>“ The trial proceeded upon a theory which allowed the defendant to introduce evidence, against the objection of the plaintiffs, upon the subject of eviction, which must have prejudiced the jury against the plaintiffs, and to which, as the court finally ruled after the defendant’s evidence was closed, the plaintiffs had no opportunity to reply, and that therefore the trial was in effect a mistrial; and no instructions were given to the jury to disregard such evidence, and they were allowed to take it into the jury room.”</p>

<p>Life Insurance — Proofs of Death — Limitation of Action—Waiver by Agent — Evidence.</p> <p>At the trial of an action on a life policy issued by a foreign insurance company, brought by the administrator of the insured more than six months after his death, which policy provided that no action should be commenced thereon after that length of time, and that agents were not authorized to make, alter, or discharge contracts or waive forfeitures, it appeared that informal proofs of death, reciting that the check in payment was to be sent to the company’s agent, were handed by the beneficiary to the agent, who put his certificate upon them; that the proofs were then forwarded to the company, and answer was made to the beneficiary through the agent as from the company, that, as “ something was wrong,” he must wait a little, and that “the case was all right” and payment would shortly be made; that the policy and a receipt-book of premiums paid was sent by the beneficiary to the company through the agent, to whom also a written demand on the company for their return was delivered by the beneficiary’s counsel; that they were afterwards returned by the agent to the counsel ; and that the agent solicited insurance, forwarded applications and proofs of death to the company, and, though he could neither make nor waive contracts, felt authorized to state that, if the contract was all right, it would be paid, and he had authority to pay every time the claim was just. The beneficiary’s counsel, who also acted for the administrator, was permitted to testify that the agent told him that the company was investigating the loss, and if there was no fraud the money would be paid, and that, relying on this assurance, he failed to bring an action within the limit. Held,, that a finding was warranted that the company had waived directly or through its agent any informality or insufficiency in the proofs of death, as well as the six months’ limit for bringing an action, which waiver enured to the plaintiff’s benefit. Held, also, that the counsel’s testimony was competent to show that the plaintiff acted on representations which may have estopped the company.</p>

<p>Complaint, dated September 13, 1887, under the bastardy act, Pub. Sts. c. 85.</p> <p>At the trial in the Superior Court, before Thompson, J., it appeared in evidence that the complainant was delivered of a bastard child on August 23, 1887 ; that the complainant at the time of her confinement, in response to a question put to her by her attending physician, said that the respondent was the father of her child; that the complainant, at her examination before a magistrate at the making of the complaint, accused the respondent of being the father of the child, and, being put upon discovery of the truth respecting such accusation in the time of her travail, accused him of being the father of the child; and that she had continued constant in such accusation.</p> <p>The judge, at the request of the defendant, ruled that, the accusation and examination before the magistrate being after the birth of the child, the complainant’s accusation during the time of her travail could, not be used to corroborate her testimony.</p> <p>The jury returned a verdict of not guilty; and the complainant alleged exceptions.</p>

<p>Tort, by the assignees in insolvency of one Walker, for the conversion of certain articles of personal property, consisting of a wooden building and the stock of goods, merchandise, and fixtures of a store kept by him therein. The case was submitted to the Superior Court, and, after judgment for the plaintiffs for the value of the goods, merchandise, and fixtures alone, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.</p>

<p>Personal Injuries — Street Railway — Negligence — Due Care in getting upon Car.</p> <p>In an action against a street railway corporation for personal injuries occasioned to the plaintiff, in attempting to get upon the rear platform of the defendant’s car while it was in motion, there was evidence that he was a man sixty-eight years old, weighing nearly two hundred pounds; that he gave a signal to stop to the driver, who slowed the car; that, while it was moving at the rate of about four miles an hour, he grasped the forward rail on the body of the car with his right hand and the rear rail on the dasher with his left hand and made a spring to get on, but his foot struck, on the edge of the step and slipped off; that as the car started up and increased its speed he made other attempts to jump on ; that he then lost his hold upon the forward rail and; grasping the rear rail with both hands, tried for a few seconds to pull himself up to the car; and that finally he let go and was thrown down and was injured. Held, that the question whether the plaintiff was in the exercise of due care was for the jury. Held, also, that his conduct in attempting to get on the car, if he believed that the driver had not seen his signal, or in seizing the rear rail after losing his hold upon the forward rail, and trying to pull himself up to the car, was not, as matter of law, negligent.</p>

Bill in equity, under the Pub. Sts. c. 151, § 2, cl. 1-1, as amended by the St. of 1884, c. 285, filed in the Superior Court on February 7, 1887, against George B. Merrill and the executors of the will and codicil of his father, Edward Merrill, to reach and apply in payment of a debt due to the plaintiff from George B. his interest in the estate. The will, which was dated May 29,1883, contained the following provisions, which alone are material. “ Seventh.

<p>Exceptions — Point not raised at Trial — Evidence — Injury from Bite of Dog — Due Care.</p> <p>If a bill of exceptions discloses that evidence at a trial was excluded upon one ground only, and does not show that it was material or important, it is not open to the excepting party to argue that it was competent on other grounds.</p> <p>The owner or keeper of a dog is liable,'under the Pub. Sts. c. 102, § 93, for an injury done by it to a person in the exercise of due care, although such injury was done in play, and without any vicious intent on the part of the dog.</p> <p>At the trial of such an action for an injury done to a boy by a dog, the defence being that he was hurt by stones upon which the dog threw him in play, evidence was offered that a similar injury was caused to another boy by his being thrown from a velocipede upon the ground near the same place. Held, that the evidence was rightly excluded.</p>

<p>Exceptions — Waiver.</p> <p>At the trial of an action, the plaintiffs’ counsel, before the closing arguments, handed to the judge many written requests for rulings, stating that he wished to except if they were not granted, but the attention of the defendant’s counsel was not called to them by him or by the judge, who said, “ I think I will charge the jury, and if I do not cover your requests, you can call my attention to the rulings to which you wish to except,” to which remark the plaintiffs’ counsel assented, after the charge neither taking exceptions nor suggesting any dissatisfaction with it. Held, that no exceptions were properly saved at the trial.</p>

Tort for injuries received by a kick from the defendant’s horse. Trial in the Superior Court, before Dunbar, J., who allowed a bill of exceptions, in substance as follows.

<p>Tort for personal injuries occasioned to the plaintiff by falling down an unguarded elevator well in a building on Sudbury Street in Boston. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>On the issue as to whether the plaintiff was in the exercise of due care, evidence was introduced tending to prove the following facts. The elevator well was situated in a building numbered 62 Sudbury Street in Boston, of which one of the defendants was admitted to be the lessee, with the privilege of subletting, the other defendants, vas trustees, being the owners. A passageway led to the rear of the building from that street, across which was a gate, which was closed at sunset and opened in the morning. An entrance to the rear of the building, about two feet above the level of this passageway, connected the passageway with the well, which extended thence to the top, and was enclosed on all sides, with doors opening out upon the different floors of the building. The elevator consisted of a platform, attached by means of posts seven feet long to a crossbeam painted dark, to which the hoisting rope was attached, and which bore this inscription in large white letters: “This elevator is for freight only, not for passengers.” The elevator was operated by means of wire ropes alongside it, which were connected with the power and extended from the top to the bottom of the well, within reach of a person thereon, or standing at either of the doors opening out of the well. There was a double door at the level of the upper floor, opening into a room occupied by the Kimball Manufacturing Company, one leaf of which was fastened by bolts at the top and bottom, and the other leaf by a spring bolt at the top only, to which was attached, for the purpose of opening it, a cord of two strands, one hanging down within the room, and the other, passing through a hole in the door, hanging down the well.</p> <p>The plaintiff, a boy of twelve and a half years of age, testified that he was employed by one Whittier, and had been sent by him many times upon errands to the Kimball Manufacturing Company. He had used the elevator almost invariably after discovering its existence, and twice had been told by persons connected with that company not to use it. It was his practice to get upon the elevator, start it by pulling the hand rope, stop it by the hand rope when at the room, pull down the bolt by pulling the cord, push open the door, and step off into the room, leaving the elevator there, and do his errand. After doing his errand, he would go back to the door, draw down the bolt, pull open the door, get upon the elevator and start it down, stop it at the bottom, and go away. He never found any one who operated the elevator, and never found any barrier or gate to prevent his going upon the elevator at the bottom.</p> <p>On the day of the accident, the plaintiff, having been sent by Whittier to the Kimball Manufacturing Company upon an errand, went to the elevator well, and, finding no one there, entered upon the elevator, started it up, and went to the room of the company. He then pulled down the bolt, pushed open the door, and went into the room, the door closing with a spring. This was about two o’clock in the afternoon. After doing his errand there, which occupied him five minutes and was transacted with the company’s book-keeper, at his desk, which was in the centre of the room, he started to go back to his employer, went in a great hurry to the door that shut off the elevator well, opened it, heard some one speak to him, turned around quickly toward the person speaking, did not look at the well or see it, and at the same time, supposing the elevator was there where he had left it, stepped out into the elevator well. The elevator, meantime, had been lowered from where he had left it by some person unknown, and he fell down the well, receiving the injuries.</p> <p>Much evidence was introduced on the issue whether the defendants were negligent in failing to guard the well, and the judge, against the plaintiff’s objection, excluded various questions .to witnesses bearing on that issue; and the plaintiff excepted.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows.

<p>Contract to recover for breach of the covenant against incumbrances, in a deed of land given by the defendant to the plaintiff. Trial in the Superior Court, before Thompson, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Petition, under the Pub. Sts. c. 191, to enforce a mechanic’s lien for labor performed and materials furnished in the construction of two houses on a lot of land in Haverhill owned by the respondent. Trial in the Superior Court, without a jury, before Lathrop, J., who found for the petitioner, and reported the case for the determination of this court, in substance as follows.

<p>Personal Injuries — Highway Defect — Exceptions — Charge to Jury as to Matters of Fact.</p> <p>At the trial of an action against a city for an injury caused by falling upon an icy sidewalk, the judge, after stating that the first question was that of the plaintiff’s due care, which he defined, instructed the jury that “the plaintiff’s testimony is the only direct testimony that you have upon the subject, and if you believe that testimony you would be justified in finding that he was in the exercise of due care, and that so far he had sustained the burden of proof which the law imposes upon him, to satisfy you by a fair preponderance of the evidence that he was in the exercise of due care.” The judge then stated to the jury, that it was a city’s duty to keep its ways reasonably safe, that slippery ice thereon did not constitute a defect rendering it liable until it had remained so long as to become rough and form an obstacle to travel, and that it was immaterial that ice existed upon the sidewalk at the place in question two days before the accident unless they were satisfied that such ice remained at the time of the accident and rendered the way unsafe or inconvenient for travellers, and instructed them as to the alleged defect, that according to the plaintiff’s evidence “ it was a ridge of ice, more or less rough ice ; that would justify you, if you believed that testimony, in finding that it was a defect if it had remained for a sufficient length of time for the officers of the city to have had notice of it” and to have remedied it. Held, that these instructions were not erroneous as a charge with respect to matters of fact.</p> <p>The judge also instructed the jury, in accordance with the evidence, that the plaintiff’s testimony tended to show that the ice was in the same condition on Sunday, the day of the accident, as it had been on Friday and on Saturday, — “ substantially the same condition, the same old ice there ”; while the evidence for the defendant tended to show that there was no ice there on Saturday night, or if so it was covered with ashes; and refused to instruct them that “ there was no evidence that the ice existing upon said sidewalk upon Sunday existed upon said sidewalk upon Friday.” The judge also instructed the jury, in view of a heavy rainfall on Saturday night, that the further question might arise, whether, if the ridge of ice existed on Saturday morning, it had been so changed by the rain of the following'night as to cease to be the same defect; adding the statement, that “ a defect does not cease to be the same defect merely because of some alteration in it by the elements,” of which statement he gave an illustration. Held, that the defendant had no ground of exception.</p>

<p>Sale on Margin — Broker — Usage — Exceptions.</p> <p>At the trial of an action to recover a balance alleged to be due on a mutual account, there was evidence that the defendant, a broker and member of the Petroleum Exchange, was employed by the plaintiff, who was not such a member, to buy oil for him on a margin; and the oil was bought with the plaintiff’s knowledge on the exchange. The judge, who tried the case without a jury, found that a usage of the exchange, permitting members to settle transactions between themselves on or before a certain hour of a day following that of a bargain and sale, applied to this transaction, but a bill of exceptions alleged by the defendant, purporting to recite “ all the material evidence in the case, ’ disclosed no evidence connecting this usage of the exchange with the dealings of brokers with their customers, or with this particular transaction. Held, that the defendant showed good ground of exception.</p>

Tori for personal injuries sustained by the plaintiff while a passenger on a train of the defendant. Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows. The plaintiff was riding in a car of the train as a passenger, having a ticket for a passage from Boston to his home in Randolph.

<p>Intoxicating Liquors — Forfeiture — Special Verdict.</p> <p>At the trial of a complaint for the forfeiture of liquors, the jury were asked, in writing, whether any of the liquors named in the complaint and described in the officer’s return upon the warrant were owned or kept by the person complained against at the place alleged, for the purpose of being sold contrary to the provisions of the Pub. Sts. c. 100, to which the jury replied, “ All kept for sale.” Held, that the question and answer taken together sufficiently showed that the liquors were kept for sale contrary to law.</p>

<p>Intoxicating Liquors — Common Nuisance — Lease — Evidence.</p> <p>At the trial, on appeal, of a complaint on the Pub. Sts. c. 101, §§ 6, 7, for keeping a common nuisance, it appeared that the defendant was the proprietor of a hotel, in which was the tenement in question, consisting of a bar-room connected by an interior door with the rest of the hotel and with the office by an electric bell; and that the defendant had formerly run the bar-room, in which liquors were found, under a license. The defendant’s testimony, that, before the time alleged, he had leased the bar-room to his former bar-keeper, who thereupon entered into possession and kept it until about the time of bringing the complaint, when he disappeared, was not corroborated, and the lease, then for the first time 'offered by him in evidence, received no other support. Several officers testified that they had seen the defendant about the bar-room during the time covered by the complaint, and had never heard of the lease, or that the barkeeper had become the lessee. Held, that the evidence was sufficient to warrant a belief that the lease was merely colorable, and, if so, the defendant was the keeper of the bar-room.</p>

Indictment for conspiracy against James McParlancl, Philip McParland, Philip Byers, and John T. Hood, all of Franklin, alleging that “ Philip Byers had been duly tried and found guilty by one George W. Wiggin, a trial justice within and for said county of Norfolk, upon a complaint, in due form of law, charging that said Philip Byers, at Franklin, in the county of Norfolk,” did keep and maintain a certain common nuisance, to wit, a tenement used for the illegal sale and…

Complaint to the District Court of East Norfolk for an unlawful sale of liquors, on September 30, 1886, to John O’Brien.

<p>Marriage — Antenuptial Settlement — Insolvent Debtoi— Transfer in Fraud of Creditors — Consideration — Statute of Frauds.</p> <p>A man in an insolvent condition, upon entering into an engagement of marriage and with intent to defraud his creditors, orally promised his intended wife to give her certain bonds as a marriage settlement, and subsequently, before the marriage, delivered to her the bonds, upon an understanding that upon the consummation of the marriage they were to become her absolute property; and the bonds remained in her possession until after they were married. Held, that the transaction amounted to no more than an executory contract to transfer the bonds upon the marriage, which was without valuable consideration, and void as against his assignee in insolvency, even if she did not participate in the fraud. Devens, C. Allen, & Knowlton, JJ., dissenting.</p>

<p>Bill in equity, filed June 15, 1887, by the administrator de bonis non, with the will annexed, of the estate of Thomas Pritchard, Jr., for instructions as to the disposition of a portion of the estate. At the hearing, before 0. Allen, J., it appeared that Thomas Pritchard, Jr. died on November 2, 1865, leaving a will which contained the following provisions:</p> <p>“ 1st. I desire that all my just debts and funeral expenses be first punctually and speedily paid.</p> <p>“ 2d. I give and bequeath to my beloved wife, Keturah M. Pritchard, the sum of fourteen thousand dollars, and all household furniture I may be possessed of at my decease, during her natural life, with power to spend as much of the principal as .she may require in case the income does not give her a suitable maintenance, and she is to decide that herself.</p> <p>“ 3d. I give and bequeath to my father, Thomas Pritchard, the sum of fifteen hundred dollars for his use forever.</p> <p>“ 4th. I give and bequeath to my brother, William Pritchard, ' the sum of one thousand dollars.</p> <p>“ 5th. I give and bequeath to my sisters, Eunice Pritchard, Mary K. Herman, and Ann W. Stinsen, each five hundred dollars.</p> <p>“ 6th. I give and bequeath to each of my brother and sister not named above ten dollars each.</p> <p>“ 7th. I give my wife authority at her decease to give to her sister, Mary P. Hills, the sum of two thousand dollars, if she feels so disposed.</p> <p>“ 8th. I hereby appoint my dear wife, Keturah M. Pritchard, executrix of this my will, which was wrote by my own hand in the city of Newburyport, this eleventh day of July, in the year eighteen hundred and sixty-four.</p> <p>“ 9th. In case the estate should exceed the sum named, I give to my wife fifty cents on the dollar, and to my father and brother William the balance, equally divided.”</p> <p>The widow of the testator died, testate, in April, 1884, and her executor upon the settlement of her estate paid over to the plaintiff six thousand five hundred dollars, that amount being the balance remaining of the sum of fourteen thousand dollars mentioned in the second article of her husband’s will, and constituting the fund in question. Sarah F. Gould, one of the defendants, contended that the reversion of the fund mentioned in the second article of the will was intestate property, and should be distributed as such, while the other defendants contended that the reversion of that fund was disposed of by the ninth clause of the will.</p> <p>The judge made a decree, which provided, among other things not material, “ that the reversion of said fund was intestate property, and should be distributed as such; but, since the widow has already received her share thereof, no part to be paid to the estate of the testator’s widow.”</p> <p>From this portion of the decree the defendants, except Sarah F. Gould, took an appeal; and the judge reported the case for the consideration of the full court.</p>

<p>Railroad—Loss of Life — Master and Servant—Negligence — Due Care.</p> <p>At the trial of an action against a railroad company for causing the death' of the plaintiff’s intestate, the plaintiff offered to prove that the intestate was employed by the defendant as a night watchman at a station through which ran three tracks from east to west, a part of his duty being to preserve order therein, and to prevent persons crossing the■ tracks from being injured; that about eleven o’clock p. m., while he was on the south side of the station, two trains, a freight train bound west and the other bound east, entered the station on the middle and south tracks respectively; that after the east bound train had passed he started to cross to the north side, supposing that the west bound train had also passed along; that this train had become separated into two parts by the spreading of the coupling link between two of the cars and only the forward part had gone by; and that, as he was crossing the middle track, the rear portion came rapidly along, and, the station being filled with noise and smoke and the lights being in bad condition, without warning, struck him on the front of the shoulder, causing injuries from which he died. Held, that the plaintiff was entitled to go to the jury both upon the question of the defendant’s negligence and upon that of the intestate’s due care.</p>

<p>County Commissioners — Truant School — Mandamus — Constitutional Law — City — Town,</p> <p>Section 14 of the Pub. Sts. c. 48, providing that three or more towns in any county may require the county commissioners to establish a truant school in such county, is mandatory upon the commissioners on a proper requirement being made, and is constitutional.</p> <p>A town, under an article in a warrant for a town meeting, “ To see if the town will unite with other towns in the county of E. to require the county commissioners to establish a truant school,” voted so to do, and authorized its school committee to carry out the vote; another town referred to the Pub. Sts. c. 48, § 14, for the law under which its officers authorized to co-operate in securing such a school were to act; and a third town authorized its school committee in its behalf “ to petition the county commissioners to establish a school for truant children, in accordance with the provisions of the Public Statutes.” All three towns by the proper officers subsequently united in a written requirement to the county commissioners, which followed the terms of the statute, for the establishment of such a school. Held, that the town officers were sufficiently authorized to proceed under the statute, and that the county commissioners were duly required to establish such a school.</p>

<p>Exceptions — Point not raised at Trial —■ Reformation of Contract — Accident Insurance Policy.</p> <p>A question not raised at a trial is not open upon a bill of exceptions.</p> <p>If an accident policy incorrectly states the occupation of the assured, the insurance company, to correct the mistake, may issue a new policy.</p> <p>A policy, after describing the assured as a “ leather cutter and merchant,” and providing that he should receive a certain weekly indemnity if he should be wholly disabled from pursuing his occupation by an accident, recited that he was insured under “ classification medium,” that engaging in a more hazardous . occupation should decrease the indemnity proportionately, and that he should not be entitled to indemnity “ beyond the money value of his time." On the back of the policy was a “classification of risks,” the “preferred” class in which included " merchant,” but the medium class, providing for less indemnity, did not in terms include “ leather cutter.” The assured became disabled while engaged in leather cutting, and brought an action on the policy to recover the indemnity. Held, that in order to recover he must show a disability both as a leather cutter and as a merchant.</p>

Contract, under the St. of 1882, c. 113, to recover money paid by the plaintiff for the defendant’s support in the Essex County receptacle at Ipswich.

<p>Intoxicating Liquors — Common Nuisance — Retail Druggist — Sale by Clerk — Burden of Proof.</p> <p>The burden of proof is upon a retail druggist, proceeded against criminally for making a sale of pure alcohol, to show that the sale was lawfully made within the St. of 1887, c. 431, § 2.</p> <p>On a complaint against a retail druggist for keeping a common nuisance under the Pub. Sts. c. 101, §§ 6, 7, there was evidence of a sale of pure alcohol as well as of other intoxicating liquor by his clerk in the regular course of business. Held, that a jury would be warranted in finding that the sales were authorized by the defendant, and that in the absence of explanatory evidence the sales must be deemed to be illegal.</p>

<p>Complaint to the Municipal Court of the Roxbury District of the city of Boston, dated August 6, 1888, and alleging that the defendant, on August 5, 1888, unlawfully did expose and keep for sale intoxicating liquors with intent unlawfully to sell the same within this Commonwealth. ,</p> <p>At the trial in the Superior Court, on appeal, before Sherman, J., police officers testified that, upon going, on August 5, 1888, with a search-warrant to premises occupied by the defendant, they found in a small grocery store there kept by her four bottles of ale, marked golden ale, in an ice-chest, and some empty lager beer bottles, and in the kitchen two other bottles of ale, also marked golden ale. The officers were then permitted, against the objection of the defendant, to testify that in the yard connected with the building in which the defendant’s premises were located they found buried in different places six bottles of ale, marked golden ale, forty-five bottles of lager beer, and one bottle of champagne cider; that in the cellar in the building there were found one bottle of ale, marked golden ale, and a pick and shovel; that premises occupied by the other tenants in the building were searched and no intoxicating liquors were found; and that within three weeks after the date of the complaint they saw parties going into and coming out of defendant’s premises, and they stated the number and occasions.</p> <p>The defendant testified, that the bottles found in the cellar and the liquors found in the yard were not hers; that she had no control over them, and did not know who owned them; that three other tenants occupied rooms in the building besides herself ; that the cellar and the yard were used by all the tenants in the building; that the beer found in the ice-chest was for her own use; that she had three children above ten years of age living with her, the oldest of whom was ill at the time of the trial; and that she owned the building and the yard, and let the rooms occupied by the other tenants to them.</p> <p>The district attorney in his argument to the jury commented upon the fact that the defendant had not called her children and her tenants as witnesses.</p> <p>The judge, in referring to that fact, instructed the jury, against the defendant’s objection, as follows:</p> <p>“ If you find that the government produced such evidence of the guilt of the defendant that, in addition to her own evidence, she was called upon to produce other evidence within her reach ; that she knew from the hearing in the Municipal Court the evidence which was to be produced against her here, and that her children and tenants were important and material witnesses, and that she knew they could give important and material evidence upon the issue of her guilt; that those witnesses were so situated in their relation to the defendant that you would expect her to call them, and not the Commonwealth; if she does not call them or explain why she does not, it is a circumstance in the case for your consideration, giving it such weight and only such weight as you think it is fairly entitled to.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Habeas Corpus — State Prison■—Massachusetts Reformatory — Removals and Permits to he at Liberty — Revocation—Seal — Rearrest — Computation of Sentence — Prison Commissioners.</p> <p>Under the St. of 1884, e. 255, § 14, any prisoner in the state prison, irrespective of the time of his committal or length of sentence, may be removed to the Massachusetts reformatory, § 3 referring only to the original disposition of the prisoners when the reformatory was established.</p> <p>A permit to be at liberty may be issued, under the St. of 1884, c. 255, § 33, to such a prisoner, as he has no vested rights, under the Pub. Sts. c. 222, § 20, relating to deductions from terms of imprisonment for good conduct; and such a permit need not set forth in terms that it was issued with the approval of the Governor and Council, and is revocable at any time by the issuing board, in its discretion, without cause shown.</p> <p>A direction by the board of prison commissioners to their secretary, to issue an order for the removal of a prisoner, as well as for his rearrest upon the revocation of such a permit, involves no delegation of authority to the secretary; and such an order requires no seal.</p> <p>A prisoner availing himself of such a permit takes it subject to the liability, in case of its revocation and his rearrest, of being held under his original sentence, subject to the provisions of the St. of 1884, c. 255, § 34, that, “in computing the period of his confinement the time between his release upon said permit and his return to the reformatory shall not be taken to be any part of the term of the sentence.”</p>

<p>Oleomargarine — Exposure for Sale — Marks on Package.</p> <p>Oleomargarine was exposed for sale in the original package, namely, a tub, the top of the cover of which had been duly marked, as well as the side and bottom, but from which the cover had been removed, disclosing the superficial surface of the oleomargarine without any mark. Held, that the terms of the St. of 1886, c. 317, § 1, had been complied with.</p>

<p>Contract for labor done and materials furnished in making repairs upon a highway in the defendant town. At the trial in the Superior Court, before Mason, J., evidence was introduced tending to prove the following facts.</p> <p>The county commissioners of Middlesex, on November 3, 1885, duly ordered repairs to be made on the Mitchellville bridge over the Nashua River, and forming part of the highway between Ayer and Shirley, and the abutments to be rebuilt, each town to rebuild the abutmeht within its limits. The defendant town, at its annual meeting in 1886, duly voted that a certain sum of money should be raised by taxation “ for roads and bridges,” and that Alfred Page, Patrick Donlan, Jr., and William B. Fenner, who had been duly elected selectmen, should act as surveyors of highways for the ensuing year. The selectmen duly qualified as highway surveyors, and proceeded to act as such, without dividing the town into highway districts. In August, 1886, Page, acting’for the selectmen and highway surveyors, orally contracted with the plaintiff to rebuild that abutment of the bridge which was in the defendant town, and the plaintiff thereupon rebuilt and completed such abutment. At the same time the plaintiff rebuilt certain wing or side walls that extended back from either end of the abutment, and thus * formed a support to the highway as it approached the bridge; and it was in controversy between the parties, whether the rebuilding of the wing walls was a part of the oral contract with Page.</p> <p>The plaintiff offered evidence, which was contradicted, tending to show that, during the progress of the rebuilding of the abutment, he made an oral contract with Page and Donlan to rebuild the wing walls, as a separate transaction from the building of the abutment; but it was admitted that, in whatever Page and Donlan did in respect to the oral contract, they were acting for the board of selectmen and highway surveyors. There was no other evidence of authority, on the part of the selectmen and highway surveyors, to make the contract on behalf of the defendant, except what appears from the foregoing statement of the facts and evidence.</p> <p>At the close of the evidence, the defendant requested the judge to rule as follows: 1. “ There is no evidence to warrant a verdict for the plaintiff.” 2. “ There is no evidence to warrant a finding that the selectmen or surveyors of highways had authority to make any contract with the plaintiff to do the work and furnish the material mentioned in the plaintiff’s declaration.”</p> <p>The judge declined so to rule, and submitted the following issue to the jury: “Did the selectmen, acting as surveyors of highways, make an agreement with the plaintiff to build the side or wing walls, as a separate transaction from the building of the abutments ? ”</p> <p>The jury answered the issue in the affirmative, and thereupon the judge directed them to return a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract upon certain promissory notes, dated February 21, 1887, and payable six months after date, made by the Snow Cattle Company, and indorsed by Anstis R. M. Fairbrother, David A. Corey, and Margaret P. Snow. Anstis R. M. Fairbrother alone defended. Writ dated August 26,1887.</p> <p>At the trial in the Superior Court, before Barker, J., the only material issue was as to the sufficiency of certain notices of nonpayment to charge the defendant as indorser. It appeared that the defendant, for some time prior to 1885, resided at 82 Blossom Street, in Fitchburg, which was also her early home, with her mother and her sister and the latter’s husband. In 1885 she went to New Zealand, and was there married to an English clergyman named Fairbrother, who was living there as a missionary. Subsequently she and her husband left New Zealand, having sold their furniture and shipped their household linen to England, and arrived at Fitchburg on September 21, 1886, and went immediately to 82 Blossom Street, where a child was born to them in November, 1886, and where they remained until June, 1887, paying their share of the household expenses. .</p> <p>There was also evidence, the material part of which was controverted, tending to show the following facts. In June, 1887, the defendant and her husband formed the purpose of going to England, to his home, with no intention of returning to Fitch-burg, or to this country, to live, and with this end in view they packed their baggage, consisting mainly of personal effects, curiosities, and articles of vertu. On June 16 they left Fitchburg, and went with the rest of the family to a cottage at Martha’s Vineyard for the sake of the. child’s health, leaving a portion of their baggage át 82 Blossom Street, with directions for a servant, who remained in the house for the summer, to put addresses, which they had prepared, on the baggage as soon as they had decided on what day they should sail, and to meet them with the baggage at Boston before they should sail. After their arrival at Martha’s Vineyard, they concluded to make their voyage in July, when their child was taken ill, and they postponed their time of sailing to August 25, for which time they procured tickets. On Sunday, August 21, the child died, and on the Monday following the entire party returned to Fitchburg, bringing with them the child’s remains for burial, this being the sole object and occasion of their return. On their arrival, they went with the remains to 82 Blossom Street, and opened the sleeping rooms and the parlors for the purpose of having the funeral there. A notary, who lived next door and was intimate with the entire family, invited them all to take their meals at his house during their stay, which invitation they accepted and availed themselves of. The notary and his wife had just visited at the same cottage at Martha’s Vineyard, and knew of the purpose of the defendant and her husband to go to England. The funeral services took place at 82 Blossom Street on Tuesday, and the burial, which was postponed on account of rain, took place on Wednesday. After the burial, the defendant and her husband accepted an invitation from a Mr. Kimball to pass the rest of their stay in Fitchburg at his house. On Wednesday evening the notary asked where the defendant and her husband were, and was informed that they had gone to Mr. Kimball’s for a visit, and had sent their thanks for the hospitality they had received.</p> <p>The note matured on Wednesday, and in the course of the same ' evening the notary was called upon by the cashier of the plaintiff bank, which was located in Fitchburg and was the holder of the notes, to protest them, which he proceeded to do. On Thursday morning the notary went to his office and wrote notices of non-payment for the defendant, put them into an envelope, and about eleven o’clock A. M. deposited the envelope, postpaid, in the general office in Fitchburg, the envelope being addressed, “ Mrs. Anstis R. M. Fairbrotber, 82 Blossom Street, Fitchburg, Mass.” There was a postal carrier system for the delivery of letters in Fitchburg, by which letters for the defendant’s mother and sister, including those for the defendant since her return from New Zealand, had been delivered; but as the husband of the defendant’s sister had a lock-box in the post-office, it had been the custom to put the letters for the entire family in such box after the final carrier delivery of each day. During the summer, whilé the family was at Martha’s Vineyard, all letters were directed to be forwarded there; but upon their return to Fitchburg for the funeral, directions were given by the defendant’s sister not to forward them. When the envelope, after its deposit in the post-office, came into the hands of the carrier whose route included 82 Blossom Street for the afternoon delivery of Thursday, he handed it back to the distributing clerk with the remark that “directions had been given not to send mail matter to the house.” The letter was subsequently taken from the lock-box, either Thursday evening or early Friday morning, and taken to 82 Blossom Street, and there placed on a mantelpiece. On Friday morning the defendant and her husband, having stopped meanwhile at Mr. Kimball’s, went to 82 Blossom Street merely to get a portmanteau, and while they were there the defendant’s sister took from the mantelpiece the envelope containing the notices and handed it to the defendant’s husband, who opened it, found the notices, and communicated the fact to the defendant, this being the first actual notice she had received. The defendant’s agent, anticipating the protest, had on Thursday morning before eight o’clock A- M. gone to the post-office and inquired for a letter for the defendant, and, finding none, went to Boston that day, and received no notice of the protest of the notes. On Saturday the defendant and her husband returned to Martha’s Vineyard,- whence they returned to 82 Blossom Street about September 15, 1887, and remained there, on account of the bringing of this action, to the latter part of November, 1887, when they went to England, having had their tickets transferred to another steamship.</p> <p>At the close of the evidence, the judge ruled, against the defendant’s objection, that the notice proved was sufficient to charge the defendant as indorser, and ordered a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Winding up of National Bank — Transfer of Shares of Stock — Submission to Arbitration — Revocation.</p> <p>Shares of stock in a national bank cease to be transferable as such upon its proceeding, at the end of the original period for which it was organized, to wind up its affairs under the U. S. St. of July 12, 1882, § 7; and only stockholders of record at that time have the right to vote for directors to settle its affairs, or are eligible for election as such.</p> <p>The existing directors of such a bank, who proceed without objection, no others being elected, to wind up its affairs, may submit to arbitration a claim made against it by one of their number, and such a submission is valid if the vote is unanimous, although he is present at the meeting when it is made; and directors subsequently elected, a majority of whom were not stockholders at the time the liquidation began, have no power to revoke the submission.</p>

Tort for an injury caused by the overflow of a common sewer through a connecting drain into the plaintiff’s cellar.

<p>Bill i$t equity, brought by the trustee under the will of Joel Bowker, against the testator’s children and grandchildren, for instructions as to the disposition of a portion of a trust fund. The will contained the following provisions:</p> <p>“ 1. I give and devise and bequeath unto my beloved wife, Lucretia, my estate in Crombie Street, where I now reside, being my brick mansion-house, with the land under and adjoining, with all the outbuildings and all the household furniture now used in my said dwelling-house, plate and other articles, to have and to hold the same to her for her own use, as her residence after my death, for and during the term of her natural life; and after her decease my will is, and I hereby give, devise, and bequeath the same to be equally divided among all my children to their use and benefit forever, the issue of my deceased daughter Eunice, and the issue of any other of my children who may not be living at the time of my decease, to take together the share of their deceased parent respectively.</p> <p>“ 2. I give and bequeath to each of my children the sum of one thousand dollars, to be paid to them by my executors in one year after my decease; and I give to my son Daniel R. Bowker the sum of one thousand dollars in trust, to apply the principal or income thereof, as he may find necessary and prudent, to the maintenance and education of the children of my deceased daughter Eunice in equal proportions. And as to all the rest, residue, and remainder of my estate and property of every name and nature, real and personal, of ■ which I may decease seised or possessed, or in any way entitled to receive, I give, devise, and bequeath the same and every part thereof unto my son Daniel R. Bowker, in trust, nevertheless, and to and upon the following trusts, respecting the same:</p> <p>“First. That my said trustee shall keep said residue well invested upon interest, and shall apply and appropriate the annual interest and income thereof as follows, viz.: He shall pay out of said income the sum of five hundred dollars every year to my said wife, Lucretia Bowker, for her support and maintenance.</p> <p>“ That he shall then divide the net income of said residue, after said payment to my said wife, into eight equal parts, and shall pay and appropriate one of said eighth parts to the education and maintenance of my said deceased daughter Eunice’s children, until they shall respectively arrive at the age of twenty-one years, when each of them shall receive their equal parts of the principal of said eighth part, which produced said income, to his or her use forever; and the residue of said net income he shall divide equally among my seven children now living, during their natural lives, and at the decease of each of them he shall divide the said share of the deceased parent among their issue until they shall arrive at the age of twenty-one years, when the principal of their parent’s share shall be divided, and paid to them as they shall respectively arrive at that age ; my meaning and intention being that my said children shall receive only the income of their respective portions, and that their children shall have their equal shares of the principal when they arrive at twenty-one years of age, and not before; and if any of my children die without issue, their shares are to be added to those of the other children. I have equal confidence in all my children, but as my son Daniel is permanently settled in Salem, and has a full acquaintance with my affairs, books, and business, I have appointed him my trustee, and appoint that he shall receive three hundred dollars per annum for his services in that trust. All sums due to me by my children, by note or otherwise, are to be considered a part of my estate, in the same manner as if they were due to me by or from any other person.”</p> <p>At the hearing, before O. Allen, J., the only question was whether the children of Mrs. Eunice Torrey, who was the testator’s deceased daughter Eunice mentioned in the will, were entitled to share in that portion of his estate held in trust for Nancy B. Curtis, another daughter of the testator who survived him, and had since deceased leaving no issue. The judge made a decree that the children of Eunice were entitled to share in the disposition of such portion; and Charles Bowker, a son of the testator, appealed to the full court.</p>

Appeal, by Stephen Barker, from a decree of the Probate Oourt allowing the final account of the executors of the will of his father, Henry Barker. The will, which was dated May 1, 1882, contained the following provision, which alone is material. “ Second.

<p>Tort for personal injuries occasioned to the plaintiff while going ashore from one of the defendant’s steamboats. Trial in the Superior Court, before Blodgett, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>The following facts were undisputed. The defendant was, in 1887, a common carrier of freight and passengers by water, owning a line of steamboats plying between Boston and Bangor, Maine, stopping at intermediate places on the Penobscot Bay and River. The defendant’s steamboats usually left Boston at about five o’clock in the afternoon, and arrived at Rockland, Maine, the first stopping place, about five or six o’clock on the following morning. The boats usually stopped about an hour at Rockland for the discharging and receiving of passengers, baggage, and freight, and then proceeded up the bay to Camden, the next stopping place. Meals were regularly served upon the steamboats of the line, during each trip, to those passengers who had bought tickets entitling them to meals, or to such as chose to pay extra for them beyond the fare for a passage alone.</p> <p>On August 22,1887, the steamboat Lewiston left Boston at the usual time, having on board the plaintiff, who had purchased a ticket for a passage, without meals, from Boston to Camden, and reached her wharf at Rockland at 7.45 o’clock on the following morning, where she remained about forty minutes, unloading and receiving freight and passengers with their baggage. The defendant leased a portion of a wharf at Rockland for the landing and receiving of passengers and freight, as well as certain rights of way over the wharf. The owner of this wharf maintained a restaurant on it, against the wishes and interest of the defendant, and for some time before August 28,1887, a practice had prevailed among passengers on the defendant’s steamboats, bound for places beyond Rockland, of breakfasting at this restaurant, with the knowledge of the defendant’s servants, who made no objection to the same.</p> <p>Of the four decks of the Lewiston, the main deck, or deck of the hull, was devoted to the storage of freight and baggage, as well as to the use of passengers, while the saloon deck, or deck next above the main deck, carried most of the state rooms, and was devoted almost exclusively to the use of passengers. The forward portion of the main deck, called the freight-room, was partitioned off from the rest of the deck, and was used for the storage of baggage and freight, passageways leading into and through it from the after portion of the deck which was intended for the use of passengers, which passageways the defendant was compelled to keep open and unobstructed. Freight and baggage were received and discharged through gangways opening out from the freight-room through the sides of the forward portion of the boat. At the wharf at Rockland egress was had from the freight-room on the main deck by means of a slip or section of the wharf, forty-two feet long and nine feet wide, which was hung upon hinges at its inner end, and could be raised and lowered in a recess in the wharf, according to the state of the tide, so that its outer end might always be on a level with the main deck while a boat was lying at the wharf. On the arrival of a boat at Rockland, it was the custom first to run out a narrow plank, about two feet wide and without side rails or cleats, through one of the gangways opening out of the freight-room on to this slip, which had been lowered to the proper level. The deck hands thereupon passed over this plank on to the slip, and thence to the wharf, for the purpose of getting a gang plank and placing it in position between the wharf and the boat, so as to overlap a part of the slip and the main deck at the gangway. This gang plank was seventeen feet long and six feet wide, was provided with rails at either side, and was handled by means of ropes attached to each corner.</p> <p>On the arrival of the Lewiston at Rockland, the plaintiff, who had purchased his supper on the boat the night before, was standing on the forward part of the saloon deck while the boat was being made fast to the wharf. The small plank had been run out from the gangway on the main deck on to the slip, and the deck hands had passed ashore over it to get the gang plank. The plaintiff thereupon, for the purpose of obtaining his breakfast at the restaurant on the wharf, went down from the saloon deck to the main deck, and, passing through the freight-room, walked across the small plank on to the slip, the outer end of which on that morning was about six feet below the general level of the wharf. He had proceeded about two thirds of the way up the slip, when he was met by the deck hands returning with the gang plank. The plaintiff stepped upon the plank, as it was in motion, and in crossing it diagonally one of his feet was caught between the plank and the side of the slip, and was injured.</p> <p>The defendant introduced evidence tending to show that no provision had ever been made or practice adopted by the defendant for discharging or receiving passengers at Rockland from, or upon the main deck, although occasionally passengers had been landed there from that deck ; that when the Lewiston arrived at Rockland on August 23, and after she had been made fast to the wharf, a passenger plank, with railings on either side and with cleats crosswise of its flooring, was run out from the forward part of the saloon deck to the wharf, and was secured by ropes to ringbolts in the deck; that during the stop at Rock-land the captain of the boat and the purser stood on that deck, at the head of this plank, to assist outgoing and incoming passengers, and to collect tickets. The defendant also introduced evidence that, before reaching Rockland, a servant of the defendant went into every part of the boat where passengers were expected to be, including the forward part of the saloon deck, at a time when the plaintiff was there, alternately ringing a loud-sounding bell, and calling: “Rockland. Passengers will land from the saloon deck, forward gangway, left-hand side.” The plaintiff and others testified that they heard no such notice given.</p> <p>The defendant further introduced evidence tending to show that, just before the plaintiff stepped upon the small plank leading to the slip from the main deck, he was warned by one Harrigan, the second mate of the boat, who was stationed near the gangway, not to go out over the plank to the wharf; but the plaintiff denied that he had received any such warning. No claim was made at the trial that the plaintiff’s injuries were wilfully inflicted.</p> <p>At the close of the evidence, the defendant asked the judge to give the following instructions:</p> <p>“ 1. The defendant was not bound to take every possible precaution against danger; it was not an insurer of the safety of the plaintiff, it was bound to use the utmost care which was consistent with the nature and extent of the business in which it was engaged, but was bound to exercise this degree of care toward the plaintiff only so long as the plaintiff remained upon or within the steamer.</p> <p>“ 2. The defendant was bound to guard the plaintiff against all such dangers only as might naturally, and according to the usual course of things, be expected to occur; and this, too, only as long as the plaintiff remained upon or within the steamer.</p> <p>“ 3. Upon the undisputed facts of this case, the plaintiff, at the time of receiving the injury of which he complains, was not a passenger; he was entitled to the rights and protection of a passenger only so long as he remained within or upon the steamer.</p> <p>“ 4. Upon the undisputed facts of this case, the undertaking and duty of the defendant toward the plaintiff was to carry him with the highest degree of care from Boston to Camden, and only at Camden to provide him safe means to leave the steamer.</p> <p>“ 5. Defendant was not bound to prevent plaintiff from leaving, or attempting to leave, the steamer at a place where it had not invited him to leave, or undertaken any contract to land him.</p> <p>“ 6. If the jury find that the plaintiff undertook, for his own convenience or pleasure, to leave the steamer at Rockland, an intermediate station on the trip for which he had purchased his ticket, while the steamer was temporarily at said Rockland for the purpose of discharging and receiving other passengers, baggage, and freight at said Rockland, and without notice to any ’of the officers or servants of the defendant that he desired to leave the steamer at that point, and without any invitation from the officers or servants of defendant to leave the steamer at said point, at the time and in the manner in which he left the steamer, then the defendant was under no obligation to furnish the plaintiff with safe means of egress from the steamer at that point.</p> <p>“ 7. If the jury shall find that the plaintiff left the defendant’s steamer at a point short of his destination, without any invitation or inducement from the defendant, or its agents or servants, and solely for his own purposes and convenience, he was, after leaving the steamer, a mere trespasser upon the defendant’s landing and wharf, and the only obligation upon the defendant was not to wilfully injure him.</p> <p>“ 8. If the jury shall find that the plaintiff was warned by the agents or servants of the defendant not to leave the steamer at the forward port gangway on the main deck at or befoi’e the time at which he left it, the plaintiff must be held to have taken all the risk of injury upon himself in leaving at the time and in the manner in which, and from the portion of the steamer at which, he left the steamer, and cannot recover from the defendant for any injury which he may have sustained while so leaving, unless such injury was wilfully inflicted.</p> <p>“ 9. If the jury shall find that the plaintiff was notified by the agents or servants of the defendant, at or before the time at which lie left the steamer, that passengers desiring to land a± Rockland were to land at or from a part of said steamer other than the forward port gangway on the main deck, from which the plaintiff did actually land, the plaintiff must be held to have taken all the risk of injury himself in leaving the steamer at the time and in the manner in which, and portion of the steamer at which, he left the steamer, and cannot recover from the defendant for any injury which he may have sustained while so leaving, unless such injury was wilfully inflicted.”</p> <p>The defendant further requested the judge, in case of a refusal to give the instruction marked No. 6, to instruct the jury as follows:</p> <p>“ 10. Even if the plaintiff was justified in leaving the steamer at Rockland in the manner and at the time and in the portion of the steamer at which he left it, the defendant did not owe him so high a degree of care after he had left the steamer and was out upon the slip, as it owed him while he remained upon or within the steamer.”</p> <p>The judge refused to give the instructions prayed for, and instructed the jury, among other things not material, as follows:</p> <p>“It is an important question whether the plaintiff, as matter of law, is entitled to maintain this action upon the ground that. at the time when he was injured duty, and therefore was guilty of But for the purposes of this tria this corporation owed him any any carelessness or negligence. , and in view of the uncontroverted facts in the case, — some o:l which are the ordinary length of time that the boat should step at Rockland, the time when the boat arrived at Rockland that morning, the time when the plaintiff took passage, the practice known to the defendant, and which the plaintiff says was know i to him, of passengers to some extent to leave the boat at Rockland for the purpose of getting breakfast, the number of passengers upon the boat, and the fact that the plaintiff’s ticket did not entitle him to a breakfast upon the boat, — I will instruct you, as requested by the plaintiff, and you are to take that to be the undoubted rule of law applicable to this case, that the plaint'ff was not bound to take his breakfast on the boat, and, using due care, had the right to go ashore for food, and during his eg ress from the boat the defendant and its servants were bound to exercise reasonable care to protect him from injury; and that is the question you will be called upon to consider.</p> <p>“ The plaintiff says that the defendant was negligent. . . . Did the defendant fail to furnish reasonable means of egress from the steamer Lewiston upon its arrival at Rockland on the morning of August 23 ? The plaintiff does not now claim that the defendant did not furnish proper means of egress from the saloon deck, nor do I understand that the plaintiff now claims that the defendant intended the gangway which was in fact used by the plaintiff for use by passengers leaving the boat; but the plaintiff says that the defendant was negligent in several respects. He says that it was the duty of the defendant to give him reasonable notice where he should leave the boat, and how he was to leave the boat, and he says that no notice was given which was brought to his attention. On the other hand, the defendant calls witnesses who tell you that notice was given that morning that passengers intending to land at Rock-land would land from the saloon deck, and the plaintiff says that, as the boat approached Rockland, he was upon the saloon deck, but he says he heard no such notice, and witnesses called by him say they heard no such notice. Now, you will inquire whether this notice was given. If given, you will inquire whether the defendant did or did not do all it was called upon to do as to this particular matter. The defendant was called upon to give notice which -would be sufficient for a man of ordinary intelligence, who was attentive, intending to avoid any danger to which he might be exposed, and who was using his senses at the time for the purpose of acquiring the information of which he stood in need. The fact that the plaintiff did not hear the notice is not decisive one way or the other. . . .</p> <p>“ Unless the plaintiff satisfies you that there was some negligence on the part of the defendant, — and that, of course, you understand to be nothing other than the failure to use reasonable care to enable the plaintiff to leave this boat in safety at Rockland, — you have no occasion to go further; but suppose you come to the conclusion that the plaintiff has shown, by a fair preponderance of the evidence in the case, carelessness on the part of this defendant corporation, still the plaintiff must go further, and satisfy you upon all the evidence in the case that there was no failure on his part to use reasonable care for his own protection. . . . Now, in several respects the defendant says that the plaintiff was careless. . . . The contention of the defendant is, that the plaintiff was careless in attempting to leave the boat at this place, because the defendant says that the appearance of things brought to the notice of the plaintiff as' he attempted to leave upon the main deck was such as to notify him that that was not intended as a place of exit for passengers, but was intended for the discharge' and receipt of freight and baggage. . . . Then, further, the .defendant says that the plaintiff, had he been attentive, using his senses, must have heard the notice that passengers were to leave the boat from the saloon deck; and the defendant says, further than that, he was warned by Harrigan, the second mate, just before he attempted to pass out at this place. . . . You will . . . say, upon all the evidence in the case, whether the two things are proved, — the negligence on the part of the defendant, and due care on the part of the plaintiff.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract to recover damages for the loss of a • car-load of apples, with a count in tort alleged to be for the same cause of action. At the trial in the Superior Court, before Blodgett, J., a verdict was returned for the defendant, and the plaintiff alleged exceptions to a ruling of the presiding judge, which ruling, together with the material facts, appears in the opinion.

Bill in equity, filed June 2, 1887, by the trustee under the will of Mary Wadsworth, against the descendants of Francis Carnes, her nephew, the administrator of Henry N. Carnes, his son, Charles R. Weeks, trustee of Emmeline C. Baxter, his grandchild, and the Central Trust Company of New York, for instructions as to the distribution of a trust fund. The case was heard by Q. Allen, J., who reported it for the consideration of the full court, in substance as follows.

Bill in equity, filed in the Superior Court on November 28,1887, by the collector of taxes of the city of Newburyport, against the Standard Yarn Company, its president, treasurer, and directors, alleging that the defendant corporation became indebted to the plaintiff for a tax duly assessed upon its real and personal property for the year 1884, for which he duly recovered judgment on November 1, 1886, in an action brought by him in October, 1885 ; that on December 30, 1886,…

Tort for personal injuries occasioned to the plaintiff while in the defendant’s employment, through its alleged negligence. At the trial in the Superior Court, before Blodgett, J., evidence was introduced by the plaintiff tending to prove the following facts, which alone are material.

Two actions of CONTRACT, upon four promissory notes, the two notes in the first case being signed by Sidney Mason, and the two in the second case by(him and his wife, dated February 1, April 15, and May 8,1884, and July 6,1885, each payable to the plaintiff or his order in one month from date, with interest at the rate of two, three, and four dollars “ per month during such term, and for such further time as such principal sum or any part thereof shall remain unpaid.” Writs…

<p>Conteact, by the administrator of the estate of Mary Lewis, to recover the balance of a deposit made by her with the defendant. At the trial in the Superior Court, before Lathrop, J., the facts appeared in evidence, or were agreed, as follows :</p> <p>The defendant was a savings bank duly chartered by the laws of the Commonwealth, and authorized to receive deposits and invest the same. In the years 1836 and 1837, while the plaintiff’s intestate was a depositor with the defendant, it met with losses in investments made in stock of the hi ah ant Bank and the Oriental Bank, which investments were made in good faith and duly authorized, amounting to five per cent of its deposits, and thereupon the trustees of the defendant passed the following votes: “May 18, 1838. Voted, that the treasurer be directed to charge those who were depositors on the 19th of the 11th month, 1836, with three per cent on the amount of their deposits, to cover the loss sustained by the failure of the Nahant Bank”; and “Voted, that the treasurer be directed to charge those who were depositors on the 18th day of the 10th month, 1837, with two per cent on the amount of their deposits, to cover the loss sustained by the depreciation of the Oriental Bank.”</p> <p>The books of the defendant bank showed that, immediately after the passage of the votes above set forth, its treasurer charged to every depositor three per cent and two per cent respectively, under these votes, on the amount of each deposit.</p> <p>The plaintiff offered in evidence a deposit-book, numbered 32, issued by the defendant to the plaintiff’s intestate, which contained the following statements:</p> <p>“ The object of this institution is to afford every industrious person the great advantage of public security and interest for small sums of money, and to enable them, without much expense of time or trouble, to obtain that personal comfort and independence which arises from prudent conduct. Sums are received by this institution so low as one dollar at a time, and laid out in government or bank stocks, or other unquestionable securities. For the improvement of this money, the depositor will be paid five per cent per annum, or two and a half per cent half-yearly, payable in the months of April and October. The surplus interest over and above the five per cent thus divided will be divided among the depositors every five years, after deducting therefrom the necessary expenses of the institution, which, it is presumed, will be very small, as the trustees and other officers will superintend the business of it without the smallest benefit to themselves. The money placed in this institution may be taken out on the third Wednesday of every month, if required by the depositors; or they may (by will or transfer) give the whole to any of their relations or other persons. The subjoined table shows how much a weekly saving of different small sums produces, in several periods of time; an advantage never before within the reach of the frugal, industrious, and provident. [Here followed a “ table showing the produce of weekly savings at a compound interest of five per cent, as allowed by this institution.”] In addition to the interest above calculated, which is certain, there will be every fifth year a dividend, or payment to each person whose money shall have remained there during five years, of probably not less than five per cent on the amount, or five dollars on every hundred.”</p> <p>This deposit-book contained the following by-laws, which alone are material:</p> <p>Article 1. “ Object of the Institution. To provide a safe and profitable mode of enabling industrious persons of all descriptions to invest such parts of their earnings or property as they can conveniently spare, in a manner which will afford them profit and security.”</p> <p>Article 9. “ Duties of Trustees. Two of the trustees shall attend in rotation at the office every Wednesday during office hours, any one of whom shall direct the investment of the moneys which may be deposited, subject to the provisions contained in the 7th article; and they pledge themselves to the public for the faithful and upright execution of this part of their trust.”</p> <p>Article 10. “ Dividends. On the third Wednesday in April and October, in every year, there shall be declared a dividend of two and a half per centum, or five per centum per annum, on all sums which shall have remained on deposit for the space of six months next preceding, and one and a quarter per centum on all sums which shall have remained for the space of three months next preceding, which- dividend shall be payable on the fourth Wednesday of April and October, or at any other time ' during office hours previous to the third Wednesday in July or January following, at which time all dividends not called for shall be added to the principal of the depositor, and be placed on interest from the time of declaring the dividend.”</p> <p>Article 12. “ Extra Dividends. There shall be declared and paid on the third Wednesday of October, 1831, an extra dividend of' all the profits which may have accrued during the preceding year, (after deducting .the dividends already made, the necessary expenses of the institution, and the sum necessary to keep good the capital stock,) to and among all such depositors whose deposits exceed the sum of five dollars, and which shall have remained in said institution during the year next preceding the time of declaring and paying said dividend; and the trustees may make afterwards such extra dividends, to be declared and paid on the third Wednesday of October, whenever they may think proper, it being understood that they are to be made at least once in five years, and that they are to divide at each extra dividend all the profits (deducting as aforesaid) among such depositors whose deposits exceed the sum of five dollars, and which shall have remained in said institution for the space of one year at least next preceding the time of declaring said extra dividend, in proportion to the sum by them respectively deposited, and to the length of time which the said deposits may have remained in said institution; but in making said apportionment, no regard shall be had to any fractional parts of a • year, but each sum deposited within every year shall be referred, for the purpose of calculating its share of the extra dividend,-to the third Wednesday of October next following the time at which it was deposited.”</p> <p>Article 13. “ Mode of withdrawing Funds and receiving Interest. Dividends may be received either personally, or by the order in writing of the depositors, or by letter of attorney. Money deposited shall only be drawn out by the depositor, or by some person by him legally authorized; but no person shall receive any part of his principal or interest without producing the original book, that such payment may be entered therein, except in cases where the original deposit-books are lost, in which cases, after the depositor whose original deposit-book is lost shall have advertised the said book as lost, in the newspaper printed in Lynn or Salem, for such term of time, not less than three months, as the standing committee for the time being shall require, in which advertisement the number of his said deposit-book, the amount of each of his deposits entered therein, the name of the same depositor, and his intention to apply to the institution for the payment of his deposits and interest, notwithstanding the loss of his original deposit-book, shall be particularly stated; or after he shall have given satisfactory security to the same committee that he will refund to the institution all money which shall be paid him by the institution on account of his said deposits, and of the interest thereon, provided his said deposit-book shall be afterwards found or produced ; the same depositor, notwithstanding the loss of his original deposit-book, shall be entitled to receive from the treasurer the amount of his deposits entered in the book so lost, and the interest which has accrued thereon. No money can be withdrawn except on the third Wednesday of each month; and no sum less than five dollars of the capital of any depositor shall be withdrawn unless the whole sum deposited by such person shall be less than that amount.”</p> <p>Article 14. “ Duplicate Book. All deposits shall be entered in the books of the corporation, and a duplicate book shall be given to each depositor, in which the sum paid by him shall be entered, and which shall be his voucher, and the evidence of his property in said institution.”</p> <p>Article 16. “ No Emoluments. The trustees of this institution shall never receive any emolument therefrom, but may allow reasonable compensation to a treasurer, or such other officers as may be found necessary.”</p> <p>Article 19. “ Institution how dissolved. The trustees may, by a vote of a major part of the whole number, at any time return the amount of all or any of the deposits, or divide the whole of the property among the depositors, in proportion to their respective interests therein, upon giving three months’ notice thereof, and shall also be at liberty to refuse to receive any deposits at their pleasure.”</p> <p>Article 20. “ Trustees free from Responsibility. The trustees, undertaking these duties without the expectation of emolument, and pledging themselves to an upright and conscientious discharge of them, are not to be held responsible for any losses which may happen, from whatsoever cause, except their wilfully corrupt misconduct; in which case those trustees only who were present and guilty of such misconduct shall be answerable for the same.”</p> <p>Article 21. “ The trustees have proposed the payment of five per cent as the stated interest merely as an experiment, and have provided that the depositors shall receive, by way of extra dividends, all the surplus profits above the five per cent annually divided; they moreover pledge themselves that the annual rate of interest shall be raised as soon and as high as experience shall prove to be practicable.”</p> <p>The account between the defendant and the intestate, corn tained in the deposit-book, disclosed as due to her, under the date of April 18, 1838, the sum of three hundred and twenty-one dollars and sixty cents, followed by this entry under the year 1838, “ May 21, Paid three hundred and six and 35-100,” leaving an apparent balance of fifteen dollars and twenty-five cents, the figures representing which were the last entered in the deposit-book, and which was the sum by which the deposit of the plaintiff’s intestate would be reduced if made under the terms of the two votes of the defendant’s trustees of May 18, 1838.</p> <p>The defendant introduced in evidence its ledger account with the plaintiff’s intestate, the material part of said account being as follows:</p> <p>“1838. 1321.60</p> <p>Loss deducted, 15.25</p> <p>May 21, Paid 306.35 ”</p> <p>The ledger of the defendant bank showed that under the figures “ 306.35,” above mentioned, were drawn two red lines, which were explained in evidence to indicate that the account was closed.</p> <p>This payment of three hundred and six dollars and thirty-five cents was made to an attorney at law, who acted for the intestate, and signed a receipt for the money on the books of the bank; and also, on the same day, signed similar receipts on behalf of two other persons, whose deposit-books show a similar unpaid balance. Mary Lewis died in 1855, and administration on her estate was taken out for the first time in 1886. From the time of the payment to her attorney there was no evidence of a demand for the money in suit during her life; and the pass-book above referred to was found in a bureau drawer in a room in the house in which she lived and died, which room was used by her as a room in which to store things that were not in use. In the same bureau were found, at the time the pass-book in question was discovered, some old account-books, old deeds, silk handkerchiefs, old tortoise-shell combs, and “ old-time fans.”</p> <p>Upon these facts the court ordered the jury to return a verdict for the defendant, on the ground that the trustees had the right to apportion the losses in the manner above set forth; and reported the case for the determination of this court, such disposition of the case to be made as law and justice might require.</p>

<p>Estate of Deceased Person — Fraudulent Conveyance in Lifetime — Equitable Attachment.</p> <p>A creditor of a person deceased cannot maintain a bill in equity, under the Pub. Sts. c. 161, § 3, to reach and apply, in payment of his debt, land fraudulently conveyed by such person in his lifetime.</p>

Contract, to recover the price of goods sold and delivered. At the trial in the Superior Court, before Dewey, J., the only question was whether the goods were sold to a corporation called the Forbes Woolen Mills, or to the defendant as doing business under that name. The plaintiffs introduced evidence tending to show that subsequently to May, 1885, they received an order for the goods by a letter, written upon paper with the printed heading, “ Incorporated 1885.

Indictment alleging that the defendant upon one James C. Foley, a police officer, “ then and there legally authorized and duly qualified to discharge and perform the duties of said office, and being then and there in the lawful execution of the same, did make an assault with a certain weapon dangerous to life, to wit, with a certain knife, and him, the said James C. Foley, did then and there knowingly, wilfully, and designedly obstruct, hinder, and oppose, while he, the said…

<p>Contract to recover salary, as a police officer, from February 5 to April 9, 1887. Writ dated April 12, 1887.</p> <p>At the trial in the Superior Court, before Thompson, J., it appeared in evidence that the plaintiff was appointed a police officer of the city of Gloucester, in 1884, by the mayor and board of aldermen of that year, and continued to act as such under that appointment.</p> <p>The defendant, for the purpose of proving that on February 5, 1887, the plaintiff had been removed from his position as a police officer by the mayor and board of aldermen then in office, introduced in evidence the following record of the mayor and aldermen, at a meeting held on February 1, 1887: “ His Honor then removed from the police force Martin J. Williams.' The Board non-concurred in the removal by the following yea and nay vote: Yeas, Aldermen Cook, Watson, Curtis, Piper. Nays, Aldermen Gaffney, Shepherd, Dennen, Homans. . . . His Honor then nominated John Karcher in place of Martin J. Williams, and called for his confirmation by a viva voce vote, and John Karcher was declared confirmed as a police officer in place of Martin J. Williams.” This record was approved at the next meeting of the board. The defendant also introduced in evidence, that on February 2, 1887, the plaintiff was duly notified of his removal, which was to take effect on February 5.</p> <p>The defendant also introduced in evidence the following portions of the city charter of Gloucester (St. 1873, c. 246, §§ 11,12) : “ The mayor and aldermen shall have full and exclusive power to appoint a constable or constables, and a city marshal and assistants, with the powers and duties of constables, and all police officers, and the same to remove at pleasure ” ; and “ in all cases in which appointments are directed to be made by the mayor and aldermen, the mayor shall have the exclusive power of nomination, being subject, however, to confirmation or rejection by the board of aldermen.”</p> <p>It appeared in evidence that the police officers received their pay directly from the city treasury, and that John Karcher was not balloted for as a police officer; and the plaintiff introduced in evidence the joint rules and orders of the city council, art. 2, § 10, as follows: “ All officers whose salary is payable from the city treasury shall be elected by written or printed ballots.” The plaintiff further introduced in evidence the following portion of the city charter (St. 1873, c. 246, § 9): “ The mayor shall be the chief executive officer of the city. It shall be his duty to be active and vigilant in causing the laws and regulations of the city to be enforced, and to keep a general supervision over the conduct of all the subordinate officers. Whenever in his opinion the public good so requires, he may remove, with the consent of the appointing power, any officer over whose appointment he has, in accordance with the provisions of this charter, exercised the power of nomination.” The plaintiff also introduced c. 16, § 39, of the ordinances of the city, as follows: “ All complaints made against any member of the department [referring to the police department] by any other member thereof, or by any other person, shall be reduced to writing with the specifications, and shall be signed by the party making the complaint before the same shall be investigated ; an investigation of all charges shall be made by the board of aldermen, and when an officer is found guilty of any irregularity, not sufficient to call for his removal from the force, the board of aldermen shall decide what the punishment shall be therefor, as provided in the preceding section.” It appeared in evidence that the punishment alluded to in this section was that the officer should be liable to reprimand, suspension, deduction from his pay, or discharge, according to the nature and aggravation of his offence.</p> <p>, The plaintiff contended that there was no vote by the mayor and aldermen showing that he had been removed as a police officer; that the alleged vote upon the records was insufficient, incomplete, and was not a legal vote ; that, under the city charter, the mayor had no right to remove the plaintiff without cause, and that the plaintiff was entitled to a hearing before he could be removed from the force; and that upon all the evidence he was still a police officer and was entitled to his pay. It was admitted by the defendant, that, if the record of the doings of the mayor and board of aldermen, as above set forth, together with the other facts in the case, did not constitute a removal, then the plaintiff was still a police officer of the city of Gloucester, and was entitled to recover judgment for his salary.</p> <p>Upon this evidence, the judge ruled that the plaintiff could not maintain his action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort for personal injuries. The declaration alleged that, on March 2,1887, through the carelessness and negligence of the defendant corporation, a large quantity of snow fell from the roof of a church building owned by the defendant, situated on Barton Square, a street in Salem, upon the plaintiff’s horse, while the plaintiff, being in the exercise of due care, was unloading his wagon in such street, causing the horse to run and to throw the plaintiff to the ground, greatly…

<p>Tort for the conversion of certain articles of personal property belonging to the plaintiff. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, which, so far as material, appears in the opinion.</p>

<p>Partnership — Infant Partner — Petition to vacate Insolvency Proceedings.</p> <p>The property of a partnership, including the share of an infant partner, may, after its dissolution and his repudiation of its debts, be devoted to their payment, upon proceedings in insolvency instituted by his copartner.</p> <p>If a petition on the Pub. Sts. c. 157, § 15, by such infant partner, to vacate the proceedings in insolvency against the partnership, does not allege, or if it is not shown by evidence, that the firm was not in fact insolvent, the petition will be dismissed.</p>

Tort for the conversion of a promissory note for $8,054.79, dated November 16, 1886, signed by the Gull River Lumber Company, payable to J. S. Pillsbury, and indorsed by him and the Pray Manufacturing Company. Writ dated December 17, 1886. At the trial in the Superior Court, without a jury, before Mason, J., the following facts appeared.

Contract for the breach of an agreement to purchase certain shares of stock. The declaration set out, as containing the alleged agreement, certain letters, the first of which, sent by the defendant to the plaintiff and received by him, was as follows: “ Office of the Metropolitan Steamship Company, India Wharf, Boston, May 16, 1884.

Petition under the Pub. Sts. c. 191, to enforce a mechanic’s lien for labor performed in the erection of a house on a lot of land in Boston, owned by the respondent. At the trial in the Superior Court, before Sherman, J., the only question was as to the sufficiency of the description of the property intended to be covered by the lien in the statement filed by the petitioner in the registry of deeds.

<p>Boston Board of Police — Title to Office—Quo Warranto — Equity Jurisdiction.</p> <p>The title to office of the board of police of the city of Boston, appointed by the Governor under the St. of 1885, c. 323, can only be impeached directly by an information in the nature of a quo warranta, and not collaterally by a petition in equity, under the Pub. Sts. c. 27, § 129, to prevent the raising and appropriation of moneys by the city to pay the salaries and expenses of such board, and the expenses of the police department upon its requisition.</p>

<p>Contract to recover a part of a trust fund. Writ dated August 21, 1886. An auditor to whom the case was referred reported in favor of the plaintiff. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>The plaintiff introduced evidence tending to show that the defendant, the plaintiff, and William H. Perley were the only children of Joseph G. Perley, who died on April 19, 1883; that Joseph G., shortly before his death, gave to the defendant five thousand and fifty dollars, orally directing the defendant to deposit it in a bank, and, after making certain gifts on behalf of Joseph G. and paying all his debts and the expenses of settling his estate, to divide the balance then remaining between the plaintiff, the defendant, and their brother; that there remained in the hands of the defendant, after making such payments, a balance of about five thousand dollars; and that the defendant was duly appointed administrator of the estate of Joseph G., making no mention in his accounts as such administrator either of the five thousand and fifty dollars or of debts or charges against the estate. The defendant introduced evidence tending to show that he received the moneys in question from Joseph Gr. upon an agreement that,-after making the payments referred to, all of which he had made, the balance then remaining should belong to him.</p> <p>It appeared in evidence, among other things not material, that on April 23, 1883, the defendant handed to William H. Perley one thousand dollars, receiving in return only the nonnegotiable promissory note of the latter for that amount, payable to the defendant, and that the defendant, in an action on the note, in 1885, failed to recover (Perley v. Perley, 144 Mass. 104), the defendant contending that the transaction was a loan, but the plaintiff contending that it was a payment by the defendant on account of the share of William H. of the fund in question. The plaintiff was then permitted, against the objection of the defendant, to ask him, on cross-examination, if, in February, 1884, he did not buy real estate from William H. and pay him two hundred dollars in cash for it; to which the defendant replied that he did, but that he bought it for a Mrs. Newhall, who repaid the money advanced by him for that purpose. The plaintiff thereupon called William H. as a witness, who testified, against the defendant’s objection, that when the defendant bought the real estate in question from him no mention was made of Mrs. Newhall, nor was any suggestion made that the defendant was buying the land for her.</p> <p>The defendant called as a witness Elizabeth Gr. Ramsdell, who was the nurse attending Joseph Gr. Perley, the defendant’s father, during his last illness, and offered to show by her that his father made statements and declarations to her, a day or two after the money was claimed to have been given to the defendant, that it was given to the defendant as his own, subject to the payments above stated, and that after such disbursements the balance was to belong to the defendant absolutely. The judge excluded this evidence, and the defendant excepted.</p> <p>The defendant also called as a witness Frank S. Perley, a son of the defendant, who testified that he was present at a conversation between his father and his grandfather, the day after the money had been deposited in the bank, and that he heard his grandfather state that the money so deposited was a gift to his father, subject to the payments referred to; and also that he had worked for his grandfather from November, 1882, up to the time of his death, and that during the time he had worked for his grandfather he had received no money from him on account of his services. The witness then testified, on cross-examination, against the defendant’s objection, in reply to questions put to him by the plaintiff, that he was the owner of the note given by William H. Perley to his father at the time that his father brought the action upon it, that he did not testify at the trial of that action, and that he never told his father what he knew of the interview between his grandfather and father until after that trial. The witness was also asked, against the defendant’s objection, with reference to his statement that he received no money from his grandfather for his services, whether he had not pawned a watch of his grandfather to raise money during the time he worked for him and before June, 1883; to which he replied in the negative.</p> <p>The defendant, on cross-examination, was asked certain questions by the plaintiff with a view to discredit two receipts relied on by the defendant as showing payments for which he ought to be credited. The plaintiff then called upon the defendant to produce the vouchers which he had taken in settlement of his father’s debts, and, upon their production by the defendant’s counsel, the plaintiff’s counsel held such vouchers in a bunch in front of the defendant, and in view of the jury, and asked him to explain to the jury how it was that the two receipts referred to were cleaner than the others, and were not folded as some of the receipts in the bunch were; to which the defendant answered, that the receipts had not been in his possession for a year, and that he knew nothing about their cleanliness. The bunch of receipts was then returned to the defendant’s counsel,' and when the jury were about to retire, the defendant claimed the right to send to the jury-room the bunch of receipts, in addition to the two receipts referred to which were sent by the plaintiff ; but, upon the plaintiff’s objecting thereto, the judge refused to allow the bunch of receipts to go to the jury-room, and the defendant excepted.</p> <p>It also appeared in evidence, that the action brought by the defendant against William H. Perley, on the note above referred to, was tried in June, 1886, and that “ no suit had been commenced against this defendant by the plaintiff in this action, or by her brother, until after the trial upon the note of William H. Perley.” The plaintiff was then permitted, against the defendant’s objection, to testify that, when she gave instructions for the bringing of this action, she did not know which party had prevailed in the action upon that note.</p> <p>There was also evidence on the part of the plaintiff, by witnesses called by her, that the defendant said to the plaintiff, in September, 1883, among other things, “ There are thirteen hundred dollars in the bank, your part of the money coming to you.” The defendant then offered evidence to show, that, at the time it was said that such a statement was made by him, there was no part of this money deposited in the bank referred to, or any bank, and that it had been drawn out a long time before; and called the book-keeper of the bank where the money had been deposited, and offered to show by his testimony and the books belonging to the bank, that there was no money in the bank at the time when the alleged conversation about the thirteen hundred dollars was said to have taken place, and that all the money received by him from his father and deposited in the bank had been drawn out a long time before the time of this alleged conversation. The judge excluded this evidence, and the defendant excepted.</p> <p>The plaintiff also called as a witness a stenographer, who testified that the testimony of the defendant, as given by him in this action, with respect to certain matters, differed from that given by him before the auditor. The defendant then offered to show, as contradicting this statement, from the testimony of another stenographer who was present at the trial of the action against William H. Perley upon the note, that he had at that trial testified in the same way as in this action. The judge excluded this evidence, and the defendant excepted.</p> <p>At the close of the evidence, the judge refused to rule, as requested by the defendant, first, that upon this evidence the plaintiff was not entitled to recover ; and, secondly, that if the jury should find that the money sued for was not a gift to the defendant by the defendant’s father, then it was a portion of the estate of Joseph G. Perley, for which the defendant would be bound as administrator of Ms father’s estate to account in the Probate Court, and the plaintiff could recover no portion of the money in this case, and the defendant would be entitled to a verdict.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Indictment on the Pub. Sts. c. 204, § 1, in eight counts. The first count charged that the defendant “ did falsely make, forge, and counterfeit a certain indorsement upon a certain false, forged, and counterfeit promissory note for the payment of money, which said note was of the tenor following, that is to say: ‘ Salem, March 29, 1887. $500.

Contract to recover the price of goods sold. Trial in the Superior Court, without a jury, before Thompson, J., who found for the plaintiffs, and allowed a bill of exceptions, the material part of which appears in the opinion.

<p>Covenant in Deed—Mortgage of Realty — Discharge — Redemption—Accounting— Indorsement on Execution — Receipt — Advice of Counsel—Commissions — Allowance of Costs.</p> <p>Upon a bill in equity, praying, in the alternative, that a mortgage on real estate therein described be discharged as paid, or that the land might be redeemed therefrom, it was held, upon facts found by a master, that the mortgage had not been satisfied and was still in force, but that the plaintiff might redeem upon payment of the mortgage debt, deducting certain sums therefrom.</p> <p>A statement in a deed, after a specific description of the granted premises, that they are subject tocertain mortgages, qualifies the estate granted, and a subsequent covenant of warranty applies to the estate as thus qualified, which is an equity of redemption.</p> <p>A grantee, by accepting a deed containing a covenant “that all incumbrances on the within estate shall be removed within ninety days from the date hereof, excepting a mortgage ” for a certain sum, in effect agrees to hold his estate subject to a mortgage for that sum, to be charged upon it.</p> <p>In a bill to redeem by the assignee of the mortgagor, a prayer that he “may be allowed to pay such sum as shall be found due thereon ” is a sufficient offer to redeem, within the Pub. Sts. c. 181, § 27.</p> <p>If a mortgagee, who has reduced to a judgment a note held by him as additional collateral security and has levied on more than enough of the maker’s property to satisfy the execution, learns of his financial embarrassment, he is justified in settling the debt, by the advice of an attorney in good standing, for less than one third of the amount due, and cannot be said not to have acted in good faith and with proper care.</p> <p>An indorsement by a judgment creditor’s attorney on an execution, that “ the within execution and the judgment on which the same was issued being settled, the said execution is hereby returned satisfied,” was held to be merely a receipt, which might be explained by showing what amount was actually received on the execution.</p> <p>A mortgagee in possession of land is not chargeable with the full rental value of the premises, but only with the rents actually collected by him, there being no proof of negligence or want of due diligence on his part in managing the estate.</p> <p>A commission of five per cent on amounts collected by a mortgagee in possession, as compensation for his services in the management of an estate, was held to be reasonable.</p>

<p>Common Landing Place — Reservation — Acceptance — Obstructions—Public Nuisance — Information by Attorney General— Custom.</p> <p>The reservation of a landing-place “for the public use for the inhabitants of G.” is for the benefit of the public generally, and an acceptance thereof, if necessary, is shown by the use by the public, or by a particular class thereof, of all portions of such landing, either for purposes of labor or recreation.</p> <p>An information in equity in the name of the Attorney General will lie, at the relation of persons interested, for the removal, as public nuisances, of permanent structures erected within the limits of such a landing place, although standing on a part thereof not in general use.</p> <p>Under the Province Charter, providing that fishermen might build on lands “ lying waste, and not then possessed by particular proprietors, such wharves, stages, and work-houses ” as might be necessary for the curing and packing of fish, structures in their nature permanent cannot be erected on such a landing place or on any part thereof.</p> <p>The right cannot be acquired by custom to maintain a building or permanent structures upon such a landing place.</p> <p>A ruling by a master, that such a structure was not also an encroachment upon a public way, in view of the fact that the way was never wrought, and its limits as laid out could not be defined, was held to be correct.</p>

Tort for forcibly entering upon the plaintiff’s parcel of salt marsh on Plum Island in Rowley, called the “ Pollard lot,” and cutting and carrying away the grass thereon; and for converting the same to the defendant’s use.

<p>Petition to the Superior Court for a jury to assess the damages caused by the taking by the respondent of land of the petitioner, in July, 1886, for the laying out of Atlantic Avenue in Marblehead. At the trial in the Superior Court, before Lathrop, J., the only question was as to the value of the tract taken.</p> <p>One Mason, called by the petitioners among other witnesses to prove such value, testified that he was a watchmaker and jeweller, about forty-five years of age, and had always lived in Marblehead; that he did not own real estate in the town, and had not bought or sold real estate there; that he had for several years advised his father, or, rather, his father, who had bought and sold real estate in the town, had advised him; that he had heard of a great many of the sales of real estate in the town in the last five or ten years, and at the time of such sales of the prices paid for the land; that he had heard of sales of land along Marblehead shore, which was distant from the petitioners’ land two hundred and fifty feet at the nearest point and was separated from it by higher land, and had heard of some of the prices paid; that he was familiar with the petitioners’ land, having known it all his life; that he had heard of sales and prices of land upon other streets extending parallel with the petitioners’ land and a few hundred feet distant therefrom, but could not tell of any particular sales; that he had been a collector of taxes in the town, and had in one instance acted as an appraiser of real estate; and that he thought he had a judgment as to the fair market value of real estate in Marblehead, and as to the fair market value of the land taken from the petitioners. The petitioners, to prove the market value of the land taken, then offered to ask him the following question : “ What in your judgment was the fair market value upon July 27, 1886, of the land taken from the petitioners for the laying out of said street ? ” The judge, remarking, “ There must be better evidence to be had,” excluded the question, upon the ground that the witness was not qualified as an expert to express an opinion as to such market value; and to this the petitioners excepted.</p> <p>The petitioners put in the testimony of many experts as to the value of the land; among others, that of one Wyman, who owned a farm adjoining the petitioners’ land, of the same general character. Upon cross-examination Wyman testified that his farm was worth two thousand or twenty-five hundred dollars per acre; and thereupon the respondent, against the petitioners’ objection and exception, was allowed, solely as bearing upon the question of the bias of the witness, to place in his hands a written statement, dated about June, 1886, directed to the assessors of Marblehead, and signed and sworn to by the witness, and to ask him to say from it what value he therein placed on such land of his, to which he replied, “ One hundred dollars per acre,” and added that he so valued it, and it was so understood to be valued, for its agricultural purposes only.</p> <p>The respondent called as a witness one Martin, a member of the board of selectmen of Marblehead in 1886, who testified as an expert as to the value of the petitioners’ land. Upon cross-examination he testified that the petitioners had in his judgment sustained damage to the amount of three hundred dollars, and no more. The petitioners then offered in evidence, solely for the purpose of contradicting the witness Martin, the record of the board of selectmen of Marblehead made July 27,1886, showing the laying out of Atlantic Avenue, and the amount of damages therefor, signed by Martin together with the other members of the board. The record contained the statement that the petitioners had sustained damage by the taking of their land to the amount of five hundred and fifty-three dollars, and that that sum was awarded to the petitioners. The judge ruled that the record was not admissible in evidence for the purpose named, and the petitioners excepted.</p> <p>The jury returned a verdict for the respondent; and the petitioners alleged exceptions.</p>

<p>Petition" to the Probate Court, by the administrators with the will annexed and the trustees under the will of William H. Boardman, for instructions as to the disposition of a part of the income of a trust fund.</p> <p>The petition alleged that the testator died on September 15, 1876, leaving a will, which was duly admitted to probate, and which, after a bequest of personal property and a devise for life of his homestead in Lawrence to his widow, with power to sell it, proceeded as follows :</p> <p>“ The remainder of the above bequeathed portion of my real estate, or of the proceeds arising from the sale thereof, after the termination of said life estate therein, shall be equally divided between my grandson Barton Burkley Hill, my daughter Annie Sherry Boardman, and my son George Jordan Boardman, Should either of the three last named not be living at the time of my decease, or at the termination of said life estate, nor have left issue that is then living, then the portion of said deceased party shall be equally distributed among the survivor or survivors of them, my son Henry William Boardman, and my executors, trustees jointly as representing one person, for the purposes hereinafter mentioned.</p> <p>“ 2d. All of my real estate which is situated at the corner of Essex and Appleton Streets, in said Lawrence, with the two brick blocks and other buildings thereon, I give, devise, and bequeath to my executors hereinafter named, and to their successors in said office, in trust to be by them disposed of as follows : after paying all taxes and insurance as they accrue and the necessary repairs and expenses on the same, the income thereof shall be paid each year in quarterly payments, one third thereof to my beloved wife Sarah Lucy Boardman during her natural life, the other two thirds to be equally divided between the said Barton Burkley Hill, Annie Sherry Boardman, and George Joidan Boardman, until, the youngest survivor of them is thirty years of age; but if my said wife shall die before the youngest survivor of the said Barton, Annie, and George is thirty years of age, until the youngest survivor of them is thirty years of age, to pay all of said income to the said Barton, Annie, and George, or the survivors or survivor of them, until such youngest survivor is thirty years of age, at which time, if deemed expedient by all my said executors, said income may be divided, or said real estate sold and the proceeds equally divided, between the said Barton Burkley Hill, Annie Sherry Boardman, George Jordan Boardman, Henry W. Boardman, and the issue of them deceased by right of representation, and my said executors, taken as one individual holding one share, my said executors holding the same for the purposes hereinafter declared. But said real estate is not to be sold during the life of my said wife, and for such period as my said wife shall live after the youngest survivor of said Barton, Annie, and George is thirty years of age, said two thirds shall be divided equally between the said Barton, Annie, George, Henry William Boardman, and the issue of any of them deceased by right of representation, and my said executors taken as one person, the disposition of the share to said executors being hereinafter provided for. . . .</p> <p>“ 5th. . . . The portions bequeathed to my said executors in clauses one and two of this will I hereby bequeath to them and to their successors in said office, in trust to use the income thereof for the support of my said son, Edward Palmer Board-man and his family, or to pay said income to said Edward if they see fit so to do ; and on the decease of the said Edward P., to use the same for the support of his wife so long as she remains his widow, and the support of his children. And on the decease of said Edward and on the death of said Elizabeth G., or her remarriage, I give and devise the same to the issue of the said Edward P. Boardman, and their heirs. . . .</p> <p>“ 7th. Out of the residue of my estate not hereinbefore disposed of, be the same real, personal, or mixed, I direct my said executors to give to my beloved wife, Sarah Lucy Boardman, one thousand dollars for her present needs as soon as possible after my decease, and the balance of said residue and all that may fall into said residue I give and bequeath to my said executors and to their successors in said office, but in trust to dispose of the income thereof, and the principal if necessary, in the maintenance and education of the said Barton Barkley Hill, Annie Sherry Boardman, and George Jordan Boardman, and for any other actual needs of the said Barton, Annie, and George which in the opinion of my said executors they may have. Also to give such portions of said income to my said wife, and to my said sons Henry William Boardman and Edward Palmer Board-man, as in the judgment of my said executors they may at any time need. Also to give to my brother Samuel Moody Board-man assistance from said income, as they see he may need, to an amount not to exceed'the sum of one thousand dollars. And if the said income be at any time insufficient to meet all the demands provided for in this seventh clause, then I hereby authorize my said executors to sell and dispose of any portion of said residue they may consider necessary to carry out the requirements of this clause.</p> <p>“ 8th. Should the said Barton Burkley Hill, Annie Sherry Boardman, George Jordan Boardman, Henry William Board-man, or Edward P. Boardman, or either of them, die without leaving issue of their bodies, the several devises herein devised to such as may die without issue of their bodies as aforesaid shall descend to my heirs at law.”</p> <p>The petition also alleged, that George J. Boardman, named in the will, died, unmarried, intestate and without issue, on April 5,1887; that Barton B. Hill and Annie S. Boardman, now the wife of Edward F. Dunham, were both under the age of thirty years, and that Sarah L. Boardman, the testator’s widow, was still living; that Barton B. and Annie S. contended that the portion of the income of the trust fund, created by the second clause of the will, which was payable to George J. during his life, should be paid to them; and that the petitioners were in doubt whether such income should be paid to them, or to the heirs at law of George J. or of the testator.</p> <p>The Probate Court, held by George White, Esquire, acting judge, made a decree that such portion of the income of the fund should be paid to the surviving beneficiaries, Barton B. and Annie S. From this decree certain of the heirs at law of the testator appealed to this court.</p> <p>Hearing before Field, J., who reported the case for the consideration of the full court in substance as follows. The facts set forth in the petition were admitted. Sarah L. Boardman, the testator’s widow, was his second wife, and Annie S. and George J., the latter of whom died before he reached the age of thirty years, were the only children of the testator by such second wife. Barton B. Hill was a grandson of the testator by a deceased daughter of his first wife, and had lived in the testator’s family from infancy to the time of the testator’s death. Annie S. and George J. were the only children of the testator who lived with him at the date of the execution of the will. The only other children of the testator living at the date of the will were Edward P. Boardman and Henry W. Boardman; and the appellants, who were the children of Edward P., now deceased, were all living at the same date.</p>

Tort for personal injuries occasioned to the plaintiff by falling down an elevator well in a mill while in the defendant’s employment. Trial in the Superior Court, before Lathrop, J., who allowed a bill of exceptions, which, so far as material, was as follows. On the issue as to whether the plaintiff was in the exercise of due care, evidence was introduced tending to prove the following facts.

<p>Tort for personal injuries occasioned to the plaintiff while riding upon the platform of a car of the defendant.</p> <p>At the trial in the Superior Court, before Sherman, J., evidence was introduced tending to prove that on the afternoon of January 22, 1887, the defendant had taken a train on the Eastern Division of the defendant’s railroad at Boston in ojder to go to Malden; that, having ascertained that the train did not stop at Malden, he left it when it made the stop required by law before crossing the tracks of the Fitchburg Railroad, at or near Austin Street, in Charlestown, and got upon a train leaving Boston somewhat later, upon its making a like stop at the same place; that after ascending the steps of the car which he first boarded, and while the train was in motion, he passed toward the rear of the train, through that car and one or two others, in search of a seat, which he did not find; that there were no vacant seats in either of these cars, and many passengers were standing in the aisles of the cars; that, while seeking a seat, he came to the front platform of the last passenger car but one; that while he was standing upon this platform, looking through the door or window of the car in search of a seat, the train continuing to move at the rate of from five to eight miles an hour, one of the defendant’s engines, under the control of one of its firemen, was carelessly run out on a spur track from a roundhouse situated in the angle formed by the tracks of the Fitch-burg Railroad and those of the defendant, and struck the car upon which the plaintiff was standing, and partially overturned it; and that, to break his fall and to prevent his being thrown under the wheels, the plaintiff caught either some portion of the brake handle or rod, or some portion of the railing of the platform, and received a strain which injured one of the valves of the heart, resulting in organic disease of that organ.</p> <p>The judge instructed the jury, that there was no evidence that the defendant held out any inducement to the plaintiff, or any passengers, to join the train at the place where he joined it, or at the time, or made any provision for the accommodation of passengers at that point; but that the evidence would authorize the jury to find that passengers were in the habit of leaving and boarding trains at this point, and this was known to. the officers of the defendant, and that this was all that the evidence established.</p> <p>The defendant requested the judge to rule as follows:</p> <p>“1. Upon the whole evidence, the plaintiff cannot recover damages of the defendant, because he was guilty of negligence, which contributed to his injuries.</p> <p>“ 2. If the plaintiff was riding upon the platform of the car at the time he received his injuries, he cannot recover.</p> <p>“ 3. If the plaintiff was riding upon the platform of the car unnecessarily at the time he received his injuries, he cannot recover, and there is no evidence of any circumstances which would excuse or justify his riding there.</p> <p>“ 4. If the plaintiff got upon the defendant’s train when it was merely making a stop required by law, and at a time when and a place where it held out no invitation to passengers to join the train, the plaintiff acquired no rights as a passenger until he permanently placed himself, and remained in a place, within a car intended for passengers.</p> <p>“5. If the plaintiff got upon the defendant’s train when it was merely making a stop required by law, and when and where it held out no invitation to passengers to join the train, the plaintiff acquired no rights which would justify or excuse his being upon the platform of a car.”</p> <p>The judge declined so to rule except so far as the rulings requested were given in the instructions to the jury which follow:</p> <p>“ If the plaintiff was riding upon the platform of the car unnecessarily.and voluntarily at the time he received his injury, and his so riding on the platform contributed to his injury, he cannot recover, and you must render a verdict for the defendant. If, on the other hand, you find that he entered one of the defendant’s cars having a ticket entitling him to a ride, or he so entered without a ticket, intending to become a passenger for hire, and, finding that car overcrowded, passed through such car for the purpose of finding a seat in another car of the same train, and was looking into the door or window thereof to see if he could find a vacant seat, and while so standing on the platform the car and engine came into collision, you may find that he was a passenger on the defendant’s train, provided you also find that he was acting reasonably and in the exercise of due care in attempting to find a seat or place to ride within the defendant’s car. Railroad corporations as common carriers of passengers are required to carry passengers safely, but they are not expected nor required to carry them upon the platforms of the cars; and if passengers voluntarily ride there, they do so at their own risk. The question as to the way the plaintiff entered the cars, and what he was doing at the time when the injury was received, is a question of fact entirely, for your consideration. If he went upon the defendant’s car, passing through one or more in search of a seat, and, finding the car or cars overcrowded, stepped upon the platform of the next car intending to ride there, he cannot recover, and you must be satisfied, in order to find for the plaintiff, that his stop there was a reasonable one, and that he was in the exercise of reasonable promptness in attempting to secure a seat, and that he was not there for the purpose of riding; if you find these facts affirmatively, you may find for the plaintiff.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract to recover costs. Trial in the Superior Court, before Sherman, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.</p>

<p>Contract upon the following promissory note, signed by the defendant:</p> <p>“$1,000.00. Boston, Mass., April 28, 1886. July 1, 1886, or fifteen days after I have permission to give publicity to the fact that the Chemical Electric Light and Power Company own foreign patents of Thomas John Handford, covering the use of bichromate of soda in galvanic batteries,, I promise to pay to the Chemical Electric Light and Power Company the sum of one thousand dollars, value received, as per agreement executed this day.”</p> <p>The answer set up failure of consideration, and fraud. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff offered in evidence the note and the agreement therein referred to, which was signed by the parties and was not under seal, and was called the “ Howard Agreement.” The agreement was as follows:</p> <p>“ This agreement, made this twenty-third day of April, 1886, between the Chemical Electric Light and Power Company, a corporation organized under the laws of Maine, and doing business in Boston, Massachusetts, and James H. Howard, of Med-ford, Massachusetts.</p> <p>“ Witnesseth: Whereas the said company, through its president, Stephen M. Weld, and Mr. Alfred Rodman, bought and acquired certain patent rights respecting the use of bichromate of soda from the inventor, Benoit Jarriant, of Paris, for the United States, and also for ‘ everywhere,’ meaning all countries outside of the United States where Benoit Jarriant or Thomas John Handford of England, his patent agent, have any rights which are or may be secured to him or them by reason of the issue to said Handford of a certain English patent, numbered 1,956 of A. D. 1882, 25th of April, and sealed on the seventeenth day of October, 1882; and whereas, said Howard desires to acquire and own all of said patent rights so purchased and acquired by said company for all the countries outside of the United States;</p> <p>“ Now, therefore, it is agreed as follows : For and in consideration of one hundred shares of stock of the Chemical Electric Light and Power Company transferred by said Howard unto said Alfred Rodman and delivered to Stephen M. Weld, the receipt whereof is hereby acknowledged, and the sum of one thousand dollars ($1,000) cash, to be paid unto said Stephen M. Weld for said company by said Howard, the Chemical Electric Light and Power Company hereby agree to sell, assign, transfer, and deliver unto said Howard each and every patent right covering all countries outside of the United States' purchased for it by said Rodman in France, recently, and to deliver the necessary petition, power of attorney, and other papers executed by said Thomas John Handford, or Benoit Jarriant, necessary to secure to said Howard the issue of such letters patent as he may desire to have issued, and to deliver to him all letters patent that have already been issued to said Handford in countries outside of the United States, provided said company incur no expense. Any expense necessary to accomplish above to be paid for by said Howard.</p> <p>“In consideration of the above, the said Howard agrees to pay the sum of one thousand dollars ($1,000) unto said company, on or before the first day of July, 1886, or sooner, if the patent to be applied for in the United States covering said Handford’s invention should be issued before that date, and further agrees to transfer, assign, and deliver to said company two (2) certain patents already applied for by him, covering improvements in galvanic batteries, so far as said inventions relate to the United States, so soon as said letters patent are granted and issued by the United States Patent Office. It is further agreed that said company shall bear the expense of obtaining the Handford patent in the United States, and that said Howard is to bear the expense of obtaining the two (2) patents already applied for by him; and further, that if it is found that the English patent No. 1,956, hereinbefore referred to, does secure unto said Handford or Jarriant and his assigns the exclusive use of bichromate of soda in all galvanic cells wherein' soda can be used, then said Howard is to pay unto said company a further consideration of ten per cent of the net profits received by him from the sale of said English patent right, and also ten per cent of the net profit received from the sale of rights under said Hand-ford or Jarriant in all countries where it gives Handford or Jarriant or his assigns, the exclusive use of bichromate of soda in galvanic batteries.</p> <p>“ It is further agreed, that should the entire cost of obtaining said English patent of Handford prove to be less than $1,000 (aside from the one hundred shares of stock paid to Alfred Rod-man), then and in that event the said company shall return all excess over and above the actual amount of expense incurred by said Rodman in obtaining for said company said English Handford patent, and the other foreign rights purchased from him, or from said Benoit Jarriant.</p> <p>“ It is understood that said English patent No. 1,956 is in full force and effect, otherwise said Howard is to be relieved from the payment of said one thousand dollars in cash under this agreement.</p> <p>“It is likewise understood that said Howard is to make no claim upon said company for compensation for his management of its business and finances up to May 1, 1886, and for such further time as he may continue to manage its business and finances without a written agreement as to compensation.”</p> <p>The defendant admitted that the plaintiff had taken out the United States patent, and paid the expense thereof, as required in said agreement.</p> <p>The plaintiff also introduced in evidence the following instrument under seal, and signed by the defendant, and called the “Howard Release”:</p> <p>“ Whereas, a certain agreement, a copy whereof is hereto annexed, was entered into on the twenty-third day of April, 1886, between the Chemical Electric Light and Power Company and James H. Howard, by which said company agreed, among other things, to sell, assign, transfer, and deliver to said Howard certain patent rights, purchased for it in France by Alfred Rodman, and also to deliver to said Howard certain papers and letters patent; and whereas, it is desired to have said patent rights purchased by said Rodman assigned directly to said Howard by said Alfred Rodman, or by Stephen M. Weld of Boston, in case said assignment from said Jarriant to said Weld is this day in existence, excepting an assignment covering said rights for the United States, instead of by .said Chemical Electric Light and Power Company, and to relieve said company of any further obligation to deliver to said Howard the aforesaid papers, documents, and letters patent and rights. How, therefore, in consideration of the sum of one dollar and other valuable considerations to me, said Howard, in hand paid, the receipt of which is hereby acknowledged, I, the said Howard, hereby accept the assignment of said Rodman, dated the third day of August, 1886, and the assignment of said Weld, dated August 5th, 1886, covering the aforesaid patent rights purchased by said Rodman in France. Due execution and delivery of said assignments is hereby acknowledged, in full substitution for the assignment covering such rights to be made by said company in accordance with the agreement aforesaid, and I relieve said company of all further liability to deliver to me the papers, letters, and patent rights under said agreement, provided said assignment by said Rodman and Weld conveys to me all rights acquired by said Rodman from Jarriant, excepting for the United States.</p> <p>“ In witness whereof, I hereunto set my hand and seal at Boston, county of Suffolk and Commonwealth of Massachusetts, this fifth day of August, A. D. 1886.”</p> <p>The plaintiff also introduced in evidence the assignments from Jarriant to Rodman, and from the latter to the defendant; and it was admitted that no other assignment from Jarriant had been made to Rodman or Weld than the one therein referred to, and that the defendant had assigned to the plaintiff the two patents called for by the “ Howard Agreement.” .</p> <p>The parties agreed that, instead of calling experts, the law of England, so far as material, might be proved by reading from the statutes and the reported decisions of English courts, which was done. The judge also admitted the report of a Canadian case as within this agreement, and the defendant excepted.</p> <p>The defendant offered evidence tending to show :</p> <p>“ 1st. That he was induced to execute the Howard Agreement by conduct and statements of the plaintiff’s officers, which, as he claimed, amounted in law to false and fraudulent representations.</p> <p>“ 2d. That there was an absolute failure of consideration both for the agreement and note.</p> <p>“ 3d. That the Howard Release was obtained of the defendant under the following circumstances: Rodman had taken the assignment from Jarriant in his own name, and had subsequently assigned his interest therein to Weld, and it was supposed that Jarriant had also assigned to Weld; that to simplify matters, and to avoid a succession of transfers to the company and from the company to Howard, it was decided to have the assignments made directly from Rodman and Weld to Howard, Weld saying that he would only do it on condition that that made a clear end of the whole thing; that, at the time of the execution of the release, the assignments were in possession of Weld, the president of the company; that Howard was led to expect, and did expect, to receive the assignments upon signing the release, but that instead, after signing, he was informed by Weld that the directors had instructed him that, instead of giving the assignments to Howard, he should put them in trust; that he, Weld, did not feel authorized in giving up the papers until the amount of Howard’s note had been paid, and that the only way he could deliver them would be that they should go to Kidder, Peabody, and Company’s, and put the papers in trust with instructions ; that Howard then wrote a letter to Kidder, Peabody, and Company, enclosing the assignments, authorizing them, to send them to London, to be there delivered to one Burroughs, only upon payment of a certain draft, out of the proceeds of which, if paid, Weld was to receive one thousand dollars. If the draft should be dishonored, the assignments were to be returned to Boston, and to Weld, and this letter and enclosed assignments were by mutual agreement delivered by Howard to Kidder, Peabody, and Company; that thereafter the draft on Burroughs was dishonored (on the ground of the alleged invalidity of the Handford patent), and the assignments, being returned fiom London to Kidder, Peabody, and Company, were by them delivered to and receipted for by Weld, and have ever since remained in the possession of the plaintiff company.</p> <p>“ 4th. That the English Handford patent, No. 1,956 of 1882, was invalid by reason of a prior publication of that portion thereof relating to the use of bichromate of soda in galvanic batteries, in an English patent of one Highton, No. 1,643 of 1871, claiming that by reason thereof said Handford patent was not at the time of the signing the Howard Agreement in full force and effect.”</p> <p>The defendant then asked the court to make certain rulings in the construction of the Howard Agreement, the Howard Release, the Handford and Highton patents, and as to the English law relating to the novelty and validity of a patent; and further, to instruct the jury that, if they should find the Handford patent to have been originally invalid, they should find for the defendant, as the grant of an interest in or right under a void patent is not a valid consideration for a promise by the grantee.</p> <p>“ It was agreed (subject to the plaintiff’s objection as to its competency) that Rodman paid out in the course of his trip to England and France the following sums, viz.” Here followed a list of payments by Rodman to “ Jarriant for patents, $392.00,” to patent solicitors, and for consul fees, as well as for his travel-ling and hotel expenses, for cablegram, etc., including a payment to Rodman by the company for his services, amounting to $1079.99, in addition to the one hundred shares of stock which had been furnished by Howard, as called for in his agreement. The defendant contended that by the terms of the Howard Agreement he was liable, if at all, only for payments to Jarriant, to patent solicitors in London and Paris, and for consul fees.</p> <p>The plaintiff objected to the admission of any evidence to show want of consideration for the note; or that the Handford patent was invalid; or that the instruments referred to in the Howard Release, as having been delivered to Howard, had not been delivered; or that the plaintiff company was not the owner of the “Jarriant rights"; contending that the defendant was estopped from setting up any of these defences, by reason of the release and other documents in evidence, or to show fraud, or that the cost of obtaining the Jarriant rights was less than $1,000.</p> <p>The judge, however, admitted the evidence, de bene, subject to the plaintiff’s exception, with a view to submitting certain questions, to be thereafter framed, to the jury, for them to return a special verdict thereon, the understanding of the judge being that both counsel agreed to this course; but after the evidence — including the testimony of the defendant’s expert, and of an expert called, de bene, by the plaintiff in reply, as to the identity of the inventions described in the two English patents — was all in, the counsel for the defendant stated to the judge that such was not his understanding, and that he wished to go to the jury, generally leaving them to bring in a general verdict. This the judge declined to permit, and without any specific rulings of law, at the request of the plaintiff, ordered a verdict for the plaintiff in the sum of one thousand dollars, with interest from the date of the writ. The defendant alleged exceptions.</p>

<p>Tort for the amount of a judgment recovered against the plaintiff by one Amory, for an injury for which the plaintiff became responsible through the negligent act of the defendants. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The plaintiff was a common carrier of passengers with one of its termini in Boston. Along the outside of one of the walls of its station at this terminus it maintained a sidewalk, about ten feet in width, as a part of the station and a means of egress for passengers. The plaintiff carried the United States mails to and from Boston, but took no part in the delivery of the mails after they were taken from the mail car in the station. The defendants were under contract with the United States government to carry the mails from the plaintiff’s trains, on their arrival at the station, to the post-office in Boston. It was customary for the defendants’ servants to transfer the mail from the cars to the defendants’ wagon, with the assistance only of one Jenkins, a United States railway transfer clerk, and without the assistance of the plaintiff’s servants, by loading the mail bags on a truck from the mail car, wheeling the truck to a door of the station having over it a sign marked “Mail Wagon Door” and opening on the sidewalk mentioned, drawing the bags in a compact mass from the truck to the sidewalk, where they occupied at least half of the sidewalk, and loading them at convenience from the sidewalk to the defendant’s wagon stationed at the edge of the sidewalk. The injury to Amory, for which the plaintiff was held liable, was received by falling over mail bags so placed upon the sidewalk, while leaving the station, where he had arrived as a passenger, the mail bags having been placed there by the defendants’ servant and the railway transfer clerk, substantially in the manner above described.</p> <p>There was evidence tending to show that the plaintiff, with the knowledge that mail bags were taken, as above described, and with no prohibition on its part, by the defendants and the railway transfer clerk through the door marked “ Mail Wagon Door,” and that the bags were so deposited upon the sidewalk before loading them into the wagon, had given only general instructions to the railway clerk, who communicated them to the defendants’ servants, not to take the mails until the passengers from incoming trains had passed by; and that no other regulations or instructions had been given by the plaintiff.</p> <p>After the evidence was in, the defendants requested the judge to instruct the jury as follows :</p> <p>“1. If the injury was caused by the sole default of the plaintiff, or by the joint fault of the plaintiff and any of the defendants, then the plaintiff cannot recover. ■</p> <p>“ 2. If the plaintiff authorized, licensed, or permitted the making of the obstruction which caused said Amory’s injury, it cannot recover in this action.</p> <p>“ 3. If the plaintiff authorized, licensed, or permitted the defendants, or any of them, to handle the mail bags in the way and the manner in which they were handled at the time of said Amory’s injury, and such handling of the same made or constituted an obstruction of the sidewalk which caused such injury, then such authority, license, or permission made the plaintiff a joint wrong-doer as to Amory, even if any of the defendants were at fault, and it cannot recover against any of them.</p> <p>“ 4. If the plaintiff had the right to designate and determine the place where, and the way and manner in which, the mail bags should be taken from its trains and conveyed to the mail wagon, and at the time of Amory’s injury they were so taken and conveyed in the way and manner in which they were, with the knowledge of the plaintiff and without its objection, prohibition, or interference, accustomed to be conveyed prior to that time, and such way and manner of conveying the mail bags caused or contributed to Amory’s injury, then you may find that the plaintiff authorized and permitted the obstruction of the sidewalk by which that injury was caused, and if you do so find, then the plaintiff cannot recover in this action.</p> <p>“ 5. If the plaintiff maintained the sidewalk on which Amory fell, as a means of egress for its passengers from its train-house to the highway, and knew, or had reason to know, that the reasonable and convenient way and manner, or the actual way and manner, of conveying the mail bags from its train to the mail wagon, made an obstruction of the sidewalk to its passengers, and it stood by and permitted the same without objection, it was negligent as to its passengers lawfully using that sidewalk, and cannot recover from any of the defendants the amount it has been compelled to pay for injuries received by passengers caused by such obstruction.”</p> <p>The judge refused to give these rulings and instructions, but did instruct the jury upon that subject as follows: “ The plaintiff must further satisfy you, that it did not participate actively in putting the bags upon the sidewalk; that is, that they were placed there by the defendants’ servant, acting alone or with some third party not connected with the plaintiff. Now, the defendants claim that that is not enough to establish the defendants’ responsibility. The defendants claim that they did what they did under a regulation made by the plaintiff corporation as to the unloading the mails where they should be unloaded; that they acted under that regulation, and therefore they are not responsible to the plaintiff if any harm came to Mr. Amory. Now upon that subject I instruct you as follows. If the plaintiff made such arrangement, regulation, or provision for the unloading of the mails from the postal car to the mail wagon by the defendants’ servant, that, by the use of reasonable and ordinary care, they, that is, the defendants’ servants, could not avoid obstructing the sidewalk by putting mail bags thereon, and if, at the time Mr. Amory received his injury by said obstructions, said servants had used due and reasonable care as to the time and manner of transferring said mails, then the plaintiff would be so far responsible in regard to the said injury as not to be entitled to recover of the defendants in this action. But if the defendants’ servants, under said arrangement and regulation, by' the use of reasonable and ordinary care in unloading said mails, could have avoided obstructing said sidewalk at the time said Amory received his injury, then the plaintiff may recover, even though the officers, agents, and servants of the plaintiff may have known of previous instances of similar .obstructions by defendants’ servants, and made no objection thereto.”</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

Motion to accept and confirm an award of arbitrators. The case was submitted to the Superior Court, and, after the entry of an order to reject the award, to this court, on appeal, on an agreed statement of facts, in substance as follows: The agreement of submission, which was dated October 14, 1887, provided for three arbitrators, “ the award of whom, or a majority of whom, being made and reported to the Superior Court for the county of Suffolk aforesaid within fourteen days…

<p>Tort against David Knox and Elizabeth E. Knox, his wife. The declaration was as follows:</p> <p>“And the plaintiff says that he is the owner and occupant of a lot of land situate on Johnson Street, in the city of Lynn, in said county, upon which stands his residence, numbered eight in the numbering of the buildings on said Johnson Street, and bounded southeasterly by a lot of land on said Johnson Street owned by the defendants, upon which the house occupied by the defendants as a dwelling now stands. And the plaintiff says that the defendants have maliciously erected and maliciously maintain on their said lot of land, for the purpose of annoying the plaintiff, a fence, or other structure in the nature of a fence, from near the front of said lot on Johnson Street, along the line or near the line which divides the lot of land of the plaintiff from that of the defendants ; that said fence or structure unnecessarily exceeds the height of six feet, and injures the plaintiff in his comfort and the enjoyment of his said estate. Wherefore, an action hath accrued to the plaintiff to recover of the defendants the damage sustained thereby, according to the provisions of chapter 348 of the statutes of the year 1887.”*</p> <p>At the trial in the Superior Court, before Lathrop, J., the evidence showed that the plaintiff and the defendants were the occupants of adjoining estates on Johnson Street in Lynn ; that the structure complained of, which was about seventy-five feet long and eleven feet high, and composed of slats set into posts, was erected in November, 1886, on the order of Mrs. Knox, with the concurrence and assent of her husband, on her land, against the fence which stood on the line dividing the estates of the parties ; that the structure was about two and a half "feet from some of the windows of the plaintiff’s house, and about six inches from one window, the lower part of which was of ground glass ; that the cost for material and labor therefor was paid by David Knox out of his own funds, and the bill thereof was made to his wife; that they both agreed upon the form, character, and location of the structure; that David Knox was present while the structure was being erected, and gave directions to the workmen; that it was built for the accommodation of David Knox, and was used by him from the time of construction to the time of the trial; that Mrs. Knox, when notified and requested by the plaintiff to remove the structure, after the St. of 1887, c. 348, took effect, replied that she would have nothing to say about it, as she had left it all to her husband; and that David Knox paid the household expenses and resided at and on the estate, the legal title to which had been in his wife since January 14, 1884.</p> <p>David Knox testified that the structure in question was erected as, a trellis on which to trail vines, and not for the purpose of injuring the plaintiff in the comfort or enjoyment of his estate.</p> <p>The defendants asked the judge to rule:</p> <p>“ 1. That the plaintiff had no action, as chapter 348 of the Acts of the year 1887 was unconstitutional.</p> <p>“ 2. That the structure must be erected for the sole purpose of annoyance; even if a motive to annoy existed, if it was inferior to a motive of use or adornment of the defendants’ estate, and if there was a bona fide use of the structure, beneficial to the defendants, the plaintiff cannot recover.</p> <p>" 3. This action must be discontinued as to David Knox, there being no title in him to the premises on which the structure was erected.”</p> <p>The judge declined to give the first ruling requested, but ruled that the statute was constitutional; defined the terms “ maliciously ” and “ unnecessarily ”; and gave other instructions appropriate to the case.</p> <p>As- to the second request for instructions, the judge, after instructing the jury that the plaintiff must prove that the structure was maliciously maintained for the purpose of annoying the plaintiff, and that “ annoying ” meant “ injuring ” the plaintiff, either in his comfort or the enjoyment of his estate, instructed the jury as follows : “ The defendants say the structure was not put up for any such purpose; that it was put up for a perfectly .legitimate purpose, namely, as a trellis on which to train vines. If you believe that that was the sole purpose for which the structure was put up, then the plaintiff has not made out his case. But if the defendants had in mind in maintaining the structure, or if it was their intention in maintaining it, not only to use it for the purpose of training vines, but also for the purpose of injuring the plaintiff, either in his comfort or in the enjoyment of his estate, then the plaintiff has made out that part of his case.”</p> <p>As to the third request for instructions, the judge instructed the jury as follows: “ The rule of law is, that if a person does or directs the doing of an act which cannot be done at all without constituting and creating a nuisance, he is personally responsible, whether he is acting for himself, or for the benefit of another. If Mr. Knox directed this thing, took part in its erection, either personally or by over-seeing it, and you find that it is a nuisance, within the rules already stated, then the fact that he was not the owner of the estate will not prevent his being held liable.”</p> <p>The jury returned a verdict for the plaintiff for the sum of one cent; and the defendants alleged exceptions.</p>

<p>Constitutional Law — Board of Police of Boston — Itinerant Musicians — Rules and Regulations — Notice — Salvation Army.</p> <p>The board of police of Boston has the power, by delegation from the city council under authority from the Legislature, to adopt rules for the regulation of itinerant musicians in the streets and public places of the city; and such rules when made are binding upon all persons without notice, and are not unreasonable or invalid in requiring the taking out of a license, for which a small fee must be paid, by such a musician.</p> <p>A member of a religious organization, while playing on a cornet without a license in a street parade and creating no actual disturbance, is an itinerant musician within the meaning of such rules, and is not protected by the fact that his act was done as a matter of religious worship only.</p> <p>The St. of 1885, c. 323, creating a board of police for the city of Boston, to be appointed by the Governor and Council from the'two principal political parties, is constitutional.</p>

Petition to the Superior Court, for a jury to assess damages for the taking of land in Boston, on December 27, 1879, for the Back Bay Park. At the trial in the Superior Court, before Deioey, J., the defendant called Thomas Hills, chairman of the board of assessors of the city of Boston, who testified that in his opinion the petitioners’ land, in December, 1879, was worth ten to twelve cents per foot.

<p>Bill in equity, filed October 10, 1888, to restrain the city of Boston from excavating highways in the town of Quincy, in laying water pipes from the Chestnut Hill Reservoir to Long Island in Boston Harbor, by way of Moon Island. Hearing on the pleadings and agreed facts before Field, J., who reserved the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Contract to recover the price of a dwelling-house erected by the plaintiff for the defendant. At the trial in the Superior Court, before Blodgett, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions. The material facts are stated in the opinion.</p>

Contract, brought for the benefit of Charles M. Kimball, upon an account annexed, to recover for work done. Trial in the Superior Court, before Bacon; J., who allowed a bill of exceptions, in substance as follows.

<p>Bill in equity, filed on June 15, 1887, by Ralph Warner and Henry S. Brown, pew-holders of the Bowdoin Square Baptist Society, a committee of the Bowdoin Square Baptist Church, and two deacons thereof as such and in their own right as members of the church, against the Bowdoin Square Baptist Society and the Massachusetts Baptist Convention.</p> <p>The bill alleged, that about 1840 a tract of land was purchased and a meeting-house erected, partly by means of contributions from members of different Baptist congregations and partly with the proceeds of a mortgage placed upon the property ; that the contributions were made “ for the purpose of erecting a meeting-house for the use of a Baptist church to be afterwards formed to worship in said house ” ; that after the completion of the meeting-house a church was formed and w;as recognized by the denomination, and that it had continued to occupy the meeting-house as its place of worship until shortly before the filing of the bill; that soon after the organization of the church the pews in the meeting-house were sold at auction; that shortly thereafter the purchasers of pews organized themselves, as a corporation for religious purposes, as the Bowdoin Square Baptist Society, and that thereupon a building committee, in whose name the land had been purchased, conveyed the land and meeting-house to this society; that the society had levied taxes on the pews for the maintenance of public worship, but that worship had been under the charge and control of the church until about the year 1867; and that the society had constructed two stores in the basement of the meeting-house which had yielded a rental, and this rental had been used by the society in the maintenance of worship and in the care of the property.</p> <p>The bill further alleged, that about the year 1873 many of the pew-holders had removed from the neighborhood of the meetinghouse, and had ceased to be worshippers in the meeting-house; that from about that date pew taxes had ceased to be assessed, and that the meeting-house had been left to the use of the church; that from that time worship had been sustained by voluntary offerings from church members and others, and by the store rents mentioned above; that offerings were collected weekly and handed over to the treasurer of the society, and that he disbursed them, together with the store rentals; and • that the church and congregation had contributed toward repairs and alterations of the meeting-house and furnishing the building about three thousand dollars, and had paid off a debt of the society of about nine hundred dollars.</p> <p>The bill also alleged, that Asa Wilbur, who was for a long time prior to his decease a deacon of the church and a worshipper in the meeting-house, being desirous of maintaining public worship in the meeting-house, and of preventing any attempt on the part of pew-holders no longer worshipping in it from selling or disposing of the property, purchased some sixty-four pews, and, subsequently to August, 1875, bequeathed them to the Massachusetts Baptist Convention, upon the trust that “ The Bowdoin Square Baptist Church and Society, now worshipping in said house,” are “ to have the free use and control of the said pews and property as they now have, so long as the said church shall continue a religious and ecclesiastical body holding the doctrines and sentiments in its articles of faith, and worship in said house,” and with the provision that if the church should disband, or be merged into or unite with another church, to worship in another place, or if the meeting-house should be sold, then the trustee should hold the proceeds of the trust property for certain other purposes specified in the testator’s will.</p> <p>The bill also alleged, that for one year prior to the filing of the bill no member of the society had been a member of the church ; that a large number of the original proprietors of pews had died since 1874, and that their title had passed to their representatives, not connected with the church and having no interest in it; that the society itself had acquired title to a large number of pews; that there were a large number of free pews; that at a meeting of the society in November, 1885, a majority of the pew-holders, against the protest of a minority, voted to close the meeting-house, and that the meeting-house was closed; that at this meeting the majority who voted for the closing “ were persons who had not previously been members of said society or proprietors of said pews, and had no interest therein, but were so present by reason of the fact that a certain minority of said society, desiring to create a majority of votes in favor of its wishes to close said church, conveyed, or caused to be conveyed, to said persons, certain pews for a nominal consideration”; that said persons who had so acquired said pews, being some fourteen in number, were so present, and so voted to close said house of worship, and were a majority of the persons present at this meeting; that the church had, since the closing of the meetinghouse, maintained worship elsewhere at its own expense; that at a meeting of the society in May, 1887, a majority of the pew-holders, composed of the same persons who had constituted the majority at the prior meeting, voted, against the protest of a minority, to lease the meeting-house to the defendant convention, for three years, at a-nominal rent, intending by this action to deprive the church of its right to worship in the meeting-house ; that at this meeting the church was represented, and, without waiving any rights, offered to the society a guaranteed rental of one thousand dollars per annum for the term of three years ; and that the defendant convention accepted the lease.</p> <p>The bill further alleged, that the plaintiffs were informed and believed that the defendant convention, in connection with the defendant society, was withholding the control and use of the pews from the church, and was intending to occupy the meetinghouse for its own purposes, and to exclude the church organization from it, and to divert the property to the use of some person or persons other than the Bowdoin Square Baptist Church.</p> <p>The prayer of the bill, so far as material, was that the society might be declared to hold the meeting-house “ in trust for the benefit of said church organization,” and that “ said church organization ” might “ be declared to have the use of the property upon such terms as shall be just and equitable ”; that the society might be enjoined from appropriating the meeting-house and the revenues of the building to any purpose other than the benefit of the church; that the lease to the defendant convention might be cancelled ; that the church might be decreed “ to have the full right and the use and management ” of the meetinghouse ; that the society might be ordered to pay over the income of the property to the church, or its deacons for the time being, “ for the maintenance of public worship by said church organization in said church edifice,” and that the defendant convention might be .enjoined from interfering in any way “ with the full and free use of said sixty-four pews by said church organization.”</p> <p>The defendants demurred, among other grounds, for multifariousness and for want of equity.</p> <p>The case was heard upon the bill and demurrer before JDevens, J., who reserved it for the consideration of the full court.</p>

Two ACTIONS oe tort under the St. of 1887, c. 348, for maliciously erecting and maintaining a “ fence,” as alleged in the first count of the declaration in each case, and a “ fence or other structure in the nature of a fence,” as alleged in the second count of the declaration in the second case, each unnecessarily exceeding six feet in height, at or near the line of adjoining estates of the parties on High Street, in Newburyport.

<p>Equitable Attachment — Executory Agreement—Subscription—Chose in Action — ‘ ‘ Debt.”</p> <p>An executory agreement under seal between a railroad company and certain of its first mortgage bondholders, whereby, in consideration of the issue to them of debenture bonds of the company, each subscribes and agrees to pay to it moneys with which to pay its floating debts and put its road in running condition, does not establish a trust in favor of a creditor of the company; and a bill in equity by a creditor, under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, will not lie to reach and apply the moneys so subscribed in payment of a debt due from the company to him.</p>

<p>Probate of Will — Appeal by Testator’s Widow — ‘1 Person Aggrieved ’ ’ — Issues to Jury — Setting aside Findings — Sanity— Undue Influence.</p> <p>The widow of a testator has a right of appeal, under the Pub. Sts. c. 156, § 6, from the allowance of the will of her husband.</p> <p>At the trial of a probate appeal a jury found that the testator was of unsound mind, and that the will was procured by fraud or undue influence. On a motion to set aside such findings, as against the evidence and contrary to the instructions given them, the judge set aside those relating to the testator’s sanity, but refused to set aside those relating to fraud or undue influence. Held, on an appeal to the full court, the evidence not being reported, that the discretion of the judge did not appear to be improperly exercised.</p>

<p>Complaint for keeping and maintaining a common nuisance, to wit, a tenement in Woburn, used for the illegal sale and keeping for sale of intoxicating liquors, from May 1,1887, to November 12, 1887. Trial in the Superior Court, on appeal, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The government introduced evidence tending to prove that during the time alleged intoxicating liquor was sold on the premises to several parties; that sales were made by the defendant; that the building was, at the time alleged, occupied for the bottling of ginger ale, soda water, and lager beer ; that there was a bar-room in the rear of the premises where intoxicating liquors were sold; that the bottling business was carried on under the name and style of the American Bottling Company, to which goods sent there were always addressed; that at the times the sales of intoxicating liquors were made, persons other than the defendant were in and about the building, attending to work that was being done there; that bills were made out to the American Bottling Company, and were mostly paid by the defendant, but sometimes by other parties that when the sales testified to were made, the defendant was about the place, sometimes in one of the rooms and sometimes in another, and personally made sales; that when the sales were made by the defendant, other persons by whom sales were made were about the premises attending to and looking after the business,' and present in the room where the sales were made; that on one occasion the chief of police visited the place, and asked the defendant to unlock one of the doors between different rooms, and the defendant did so; and that after the complaint was made, the defendant said to the complainant that, if the complaint could be settled or discontinued, he would stop selling hard stuff.</p> <p>The defendant asked the judge to rule as follows: 1st, “that there was not sufficient evidence that the defendant was proprietor during the time set forth in the complaint to,warrant the jury in finding the defendant guilty ”; and 2dly, “ that, if the circumstances relied on by the government are consistent with the fact that the defendant might have been acting as a servant or employee of another, the defendant could not be convicted, it being incumbent on the government to prove that the defendant was in fact the proprietor or keeper for his own use.”</p> <p>The judge declined so to rule, and ruled as follows: “ That the government must prove that the defendant kept and maintained the place during some portion of the time named in the complaint for the illegal sale or the illegal keeping and exposure for sale of intoxicating liquor; that if the defendant was in sole charge of the premises, and while in such charge sold or exposed for sale intoxicating liquors contrary to law, that would be a maintaining and keeping within the meaning of the statute, and render the defendant liable under this complaint.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs to all the judges.</p>

Complaint for an unlawful sale of intoxicating liquor, on July 17, 1888, to one Latter.

Indictment. Before the former decision, reported 147 Mass. 76, was made, at a rehearing in the Superior Court, before Sherman, J., on the motion for a new trial filed in that case, evidence was introduced tending to prove the following additional facts.

Two appeals from decrees of the Probate Court, appointing separate trustees for the real and personal property given by the residuary clause of the will of Emma Carruth. The cases were submitted to this court upon an agreed statement of facts, in substance as follows.

<p>Will — Partnership — Executors — Accounting — Sale to Surviving Partner — Laches.</p> <p>A partnership agreement between two provided “ that, if either partner shall die during the continuance of this agreement, the other party shall carry on the business in the same manner, until the next stock-taking, and the survivor shall then have the option of taking the assets himself, at such price and terms as may he agreed upon by the legal representatives of the deceased and himself.” Upon the death of one partner, his executors, one of whom was the surviving partner, as such, made a final agreement, after such a stock-taking with the surviving partner, as to the price and terms upon which he might buy the firm assets belonging to the estate. Held, that such agreement might be avoided within a reasonable time by those interested in the estate.</p> <p>The parties interested in the deceased partner’s estate were his widow and his minor children, of whom alie was the guardian, and it was held that such children were not affected by conduct and delay on her part showing such acquiescence as might bar her personally from holding the executors responsible for selling such share for less than its value, but that it was their right, under the Pub. Sts. c. 144, § 9, to have the accounts of the executors opened to correct any errors therein.</p> <p>The executors believed that they had a right to make such an agreement, and received and accounted for such assets at a price which they thought reasonable, but which was somewhat below their real value, which price was paid them by such surviving partner, who thereupon formed with new partners another firm which purchased such assets, mingled them with new assets, and' sold them. Held, that it would not be practicable, even if just, to follow specifically the small interest of the deceased partner that was unpaid for, and ascertain how much it had earned in the new business, but that the executors should account for tlie full value of the share of the testator at the time of the stock-taking, with interest.</p>

<p>Partition—Tenants in Common—Tax Sale — Redemption.</p> <p>A tenant in common of land sold for non-payment of taxes does not by redeeming it acquire an absolute title thereto, but is entitled to possession, and to have the lien of the tax sale kept alive, until his cotenants pay him their shares of the redemption money.</p>

Contract on a poor debtor’s recognizance, entered into under the Pub. Sts. c. 162, § 28, on March 19, 1887, by one Prall as principal, and the defendant as surety, and containing a condition, among others, that Prall should within thirty days from said March 19 “ deliver himself up for examination before some magistrate authorized to act in such cases, first giving notice of the time and place of such examination,” as by law provided.

<p>Exceptions Intoxicating Liquors — Common Nuisance —Complaint — Appeal — Record of Trial Justice — Arrest of Judgment.</p> <p>No exception lies to the refusal to give an instruction which is based on a portion of the evidence only.</p> <p>Upon a complaint against two for keeping and maintaining a common nuisance, to wit, a tenement “by them used” for the illegal keeping and sale of intoxicating liquors, one may be convicted.</p> <p>Any informality in the record transmitted by a trial justice to the Superior Court, on appeal, in a criminal case, is rendered immaterial by the appeal.</p> <p>The copy of such a record recited that the defendant was arrested and brought before the trial justice on January 14, 1888, and pleaded not guilty; that the case was continued to January 19, when, “ after due and full examination,” he was adjudged guilty and sentenced, and, upon taking an appeal, was ordered to recognize to prosecute it. A copy of the recognizance recited that the defendant was brought before the trial justice on January 19, and after pleading not guilty and “ after due examination ” was adjudged guilty and sentenced. Held, on a motion in arrest of judgment, that the record sufficiently showed that the defendant was duly tried and convicted by the trial justice, and that there was no substantial difference between the recitals in the recognizance and the record.</p>

<p>Intoxicating Liquors — Keeping and Exposure for Sale — Evidence.</p> <p>At the trial of a complaint for unlawfully exposing and keeping for sale intoxicating liquors, after evidence that the defendant owned a hotel and a barn connected with it, in which latter intoxicating liquors were found, evidence was offered that such liquors were also found in the hotel. Held, that the evidence was clearly competent.</p>

<p>Complaint alleging that the defendant, on September 7,1888, at Lowell, “ did unlawfully sell intoxicating liquor, to wit, one pint of ale, . . . not having then and there any license, authority, or appointment according to law to make such sale of intoxicating liquor.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., the following facts were agreed.</p> <p>On March 5, 1888, the board of aldermen of the city of Lowell, which consists of eight members, passed a vote requiring six of its members to vote in favor of granting licenses to sell intoxicating liquors, and that none should be granted unless six members should assent. At a meeting of the board held on June 5, 1888, at which seven members only were present, the committee on licenses recommended that the defendant’s petition for a fourth class license be granted. Upon the question of granting such a license to him, four members of the board voted in the affirmative and two members in the negative. Upon the following day the defendant tendered the ■requisite fee for a fourth class license, and the bond prescribed by law; and demanded from the city clerk a license of the fourth class, which was refused him. At the time of the complaint the defendant had no license to sell liquors under the fourth class.</p> <p>The defendant admitted that he sold the ale not to be drunk upon the premises, but contended that, by the vote of the board of aldermen on June 5, 1888, and that by his tender of the prescribed fee and bond, he was entitled to a fourth class license, and could lawfully do business under that class.</p> <p>The judge ruled upon, these facts that no license had been granted or issued to the defendant under which he was authorized to do business; as provided by licenses of the fourth class, and instructed the jury that they would be authorized in finding that the alleged sale of ale, not to be drunk on the premises, was unlawful.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint for keeping' and maintaining a common nuisance, to wit, a tenement in Randolph used for the illegal sale and illegal keeping for sale of intoxicating liquors, between May 1, 1888, and June 6, 1888. At the trial in the Superior Court, before Sherman, J., evidence was introduced tending to prove the following facts.</p> <p>The defendant, who held licenses as a common victualler, and of the first and fourth classes,* for the sale of intoxicating liquors, was the proprietor, during the time alleged, of a saloon, being the tenement in question, on Main Street in Randolph. In this saloon the defendant had an oyster counter, a cigar case, and the necessary utensils and implements for supplying food, which was kept constantly on hand. At the rear of the saloon and running across it was a bar about ten or twelve feet long and between four and five feet high, which was fitted up with fancy bottles, with liquors of all kinds, with glasses, and with the usual implements and appliances of a bar.</p> <p>One De Costa and one Mullins, who were unwilling witnesses for the government, each testified, on direct examination, that they had called for, received, and paid for intoxicating liquors at this bar; but on cross-examination each stated that such liquors, while called for at the bar or got from the defendant’s barkeeper, were delivered to them and drank while they were sitting at tables in the saloon.</p> <p>One Farrell, an officer, testified that, during the time alleged, while standing on the sidewalk in front of the saloon, he had looked into it and seen men standing at the bar and drinking liquor of the color of whiskey from glasses, there being bottles on the bar; but on cross-examination he stated that he could not swear what the liquor was that the men were drinking at the bar.</p> <p>The defendant asked the judge to rule that there was not sufficient evidence, and no evidence that the defendant kept a public bar within the meaning of the Pub. Sts. c. 100, § 9, cl. 5; but the judge refused so to rule, and the defendant excepted.</p> <p>The judge, in instructing the jury, read from the opinion in the case of Commonwealth v. Rogers, 135 Mass. 536, and gave other instructions not objected to.</p> <p>After the charge to the jury was finished, the defendant asked the judge to define what would constitute a public bar, and also to instruct the jury to disregard the evidence of Farrell, as he did not know, and could not swear positively, that the liquid which he saw the men drinking at the bar was intoxicating liquor.</p> <p>The judge refused the request, remarking that the evidence of the officer, with the other evidence in the case, was competent, whether or not the officer knew the kind of liquid that was being drunk at the bar.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract to recover money paid for freight. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on an agreed statement of facts, which, so far as material, appears in the opinion.</p>

<p>Evidence — Admission— Contradiction of Witness—Clergyman.</p> <p>At the trial of an action by a priest of the Roman Catholic Church against the archbishop of the diocese, for unlawfully removing him from his priestly office, on the issue whether the plaintiff had been guilty of misconduct in visiting a house of ill-fame for an improper purpose, he admitted having visited the place, but asserted that his visit was for a proper purpose, namely, to look after his nieces, of whom he was the moral protector. The defendant was then permitted to introduce the testimony of a witness to a conversation between the witness, the plaintiff, and one of his nieces, in which a charge of improper conduct by the plaintiff toward the niece was made by the witness, denied by the plaintiff, and reiterated by the niece. Held, that the evidence was not competent.</p> <p>The plaintiff having testified that his first visit to the house was in the middle of September, 1883, without knowledge of its character, and for a proper purpose, the defendant was allowed to introduce the testimony of an inmate of the house that the plaintiff had visited it about five months previously, and had then and there had improper relations with her. Held, that the evidence was competent for the purpose of contradicting the plaintiff.</p>

<p>Dissolution of Partnership — Retiring Partner’s Liability for Firm Debts — Novation.</p> <p>A firm was dissolved, and one partner, who continued the business under the same name, agreed with the one retiring to pay the firm debts; a firm creditor for goods sold told the continuing partner that new goods must be paid for within a limit and that over-payments might apply on the old account, and wrote him enclosing a “ statement of both the old and new account,” and stating that “ the new account ” was to be kept down to the limit and “ the old ” was to “ be paid as soon as possible ”; and in a later letter, after stating the new account and also “ the old one, that is, yours and ” the retiring partner’s, asked him to state his financial condition and that of his business ; and the continuing partner, in the presence of the retiring one and of such creditor’s selling agent, made the statement that he had bought that partner out and was to pay the firm debts, “ applying the first money thereto.” At the trial of an action by the creditor against the partners to recover for the old indebtedness, it did not appear that the plaintiff knew of the agreement between them, or that they had in fact agreed the “first money” was to be so applied, or that his selling "agent assented or had authority to assent to the arrangement stated to him. Held, that a finding for the plaintiff was not unwarranted upon these facts.</p>

<p>Sale of Intoxicating Liquors — Common Nuisance — Evidence — Charge to Jury as to Matter of Fact.</p> <p>The testimony of an officer, claiming to act under a search-warrant, that he found intoxicating liquors on premises searched by him, is admissible without the production or proof of the existence of such a warrant.</p> <p>At the trial of an indictment for keeping and maintaining a common nuisance, on the Pub. Sts. c. 101, §§ 6, 7, and for unlawfully keeping for sale intoxicating liquors, there was evidence that there was on the premises a window and a mechanical contrivance by which a man behind a bar in a bar-room, which was a rear room, could see and exclude persons entering an adjoining front room, and the defendant, to show that these were innocent contrivances, offered evidence that in other years, when he had a license, he had always exercised great care as to the persons to whom and the times when he sold. Held, that the evidence was too remote, and was properly excluded.</p> <p>Evidence was also admitted, that in a cellar, the only interior entrance to which was from the bar-room, beer was found concealed in considerable quantity, and half a barrel of bottles called “ smugglers," containing drippings of spirituous liquors. The presiding judge instructed the jury, with regard to the beer, that “ the finding of an article of merchandise in a place of business where merchandise is for sale would have a tendency to show that it was there for sale,” and refused to rule, as requested by the defendant, that the presence of such an article would not tend to show that it was there for sale. Held, that the instruction only meant that the jury was warranted in drawing the inference that the beer was kept for sale if they thought proper, and was not a ■ charge as to a matter of fact.</p>

Petition under the Pub. Sts. c. 112, § 133, to the Superior Court, for a jury to revise the award of a special commission appointed under § 131 to apportion among other things the cost of altering a railroad crossing.

<p>Contract of Sale — Warranty—Construction.</p> <p>A .letter from a seller to a buyer containing the terms of a sale, recited: “We have made sale to you of 1200 tons extra M. sugars, about No. 9 D. S. in color, at 10.10 per ton f. o. b., and we understand it is your intention to load same on the Republic on her arrival at M. ... It is further understood that the sugar is sold on a basis of 88° pol’r with 3d. per cwt. per degree downwards and fractions of degree in proportion. The sugars to be thoroughly sampled and tested on arrival.” Held, that the warranty was of the quality of the sugar as it was upon its delivery on board the ship in M., and not at the port of destination after its arrival there.</p>

<p>Loss of Life — Railroad — Negligence — Child riding free a Passenger.</p> <p>At the trial of an action on the Pub. Sts. c. 112, § 212, by an administrator against a railroad corporation for causing the death of ins children, riding free with him by reason of age on a passenger train thrown from the track, it appeared that the railroad was operated by the corporation under an agreement with the Commonwealth, which owned it, whereby the former was to provide the motive power and the latter to construct and maintain the road-bed and track in good condition. A bill of exceptions alleged by the defendant recited that it also appeared, and was not denied, that the accident was caused by the settling of the track as a result of the working of water under its bed consequent upon the filling up of the ditches alongside it, and that the track was “ improperly constructed, and was in the above respects visibly improperly kept in repair.” The presiding judge refused to rule, as requested by the defendant, that “ the defendant is not responsible for the defective condition of the road, unless the defendant had notice of the same, or might have had notice by the exercise of due care." Held, that the defendant showed good ground of exception.</p>

Tort for personal injuries occasioned to the plaintiff by reason of the want of a railing at the side of Neponset Avenue, in Boston. At the trial in the Superior Court, before Mason, J., the plaintiff introduced evidence tending to show the following facts. Neponset Avenue, at the place of the alleged defect, was sixty-six and two tenths feet wide, with a gravel sidewalk, and a gutter on each side.

<p>Tout for personal injuries sustained by the plaintiff while travelling on foot in the highway, in a collision with a wagon and horses driven by a servant of the defendant, on February 1,1887. At the trial in the Superior Court, before Brigham, C. J., on the questions whether the driver of the horses and wagon was a servant of the defendant, for whose negligence it was responsible, and whether the plaintiff was in the exercise of due care, evidence was introduced tending to prove the following facts.</p> <p>At the annual town meeting, held in March, 1886, the defendant town elected the same three persons as overseers of the poor, highway surveyors, and selectmen, and voted an appropriation for the support of its poor. The defendant at that time maintained an almshouse, and owned a farm connected with it on which it stood, together with horses, wagons, and other personal property there kept. The overseers of the poor thus elected proceeded to appoint a master of the almshouse at a stated salary, and gave him general authority to manage it and the farm, and to employ needed assistance. At the almshouse, besides the poor of the defendant, the poor of a neighboring town and certain state paupers were also boarded, under an arrangement with the overseers of the poor, both for a stated' price per week. Drivers of teams working for the highway department of the defendant town were also boarded there, and the teams bought by the overseers of the poor with money belonging to the poor fund, which were in summer let out for hire to the highway department, were kept there when not in use elsewhere. The master of the almshouse was allowed to use such teams while under his care for any purpose that he deemed necessary or proper. The products of the farm were used for the support of the inmates and such boarders, and any surplus not needed for such purpose was sold or exchanged for other supplies to be used at the almshouse. All such sales and purchases were made by the master, and an account thereof was rendered by him to the overseers of the poor for their approval.</p> <p>In the year 1886-87, the moneys received from the almshouse and farm exceeded the appropriation referred to, and together with it were paid out by the town treasurer for the support of the poor and the expenses of the almshouse, upon orders from the overseers of the poor, leaving a deficit to be made up by the defendant town.</p> <p>In the winter of 1886-87 the master employed Hiram Crawford to work at the almshouse, and his bill for services until the end of February was approved by the overseers of the poor, and the town treasurer, upon their order, paid him the amount called for, which was credited on the poor fund account. On February 1, 1887, Crawford was directed by the master to go to Boston with two horses and a wagon to haul manure to be used on the farm, and returned with a loaded wagon through the city of Newton.</p> <p>On that day the plaintiff, who was seventy-three years of age, infirm, and blind, came along the sidewalk of Centre Street, in Newton, and started to cross Richardson Street, a side street, known by him to be a quiet one and little travelled by heavy teams. He carried a cane and a crutch to assist him in walking and in guiding himself. He was familiar with the location, having often been over the same place. At the same time Crawford was driving up Centre Street, the wagon weighing seventeen or eighteen hundred pounds, and the load of manure between two and three tons, the horses walking or going at a slow trot. When approaching Richardson Street, and about to turn into it from Centre Street, Crawford saw the plaintiff crossing, and, though he supposed him lame, did not know that he was blind. He called to the plaintiff to move on, checked his horses, and tried to pull in behind him; but the plaintiff stopped and turned instead of going ahead, and was struck by the pole of the wagon and knocked down when more than half-way across Richardson Street. The plaintiff testified that he did not hear Crawford call out; that he felt safe in making the crossing, as he was very familiar with it; that he heard a team on Centre Street, but supposed it was going straight up or down that street; that his hearing was good, but he could not tell the direction of a team unless it was moving directly towards him; and that the next he knew he was struck by the pole. The marks on his person showed that he was struck on the right leg, above the knee, behind.</p> <p>The judge refused to rule, as requested by the defendant, that there was no evidence to go to the jury which would warrant them in finding a verdict for the plaintiff.</p> <p>The defendant then requested the judge to rule and instruct the jury upon all the evidence as follows:</p> <p>“ 1. That the verdict should be for the defendant.</p> <p>“ 2. That the plaintiff cannot maintain his action.</p> <p>“ 3. That the overseers of the poor, being elected and having their duties prescribed by the laws of the State, the defendant town had no direct control of the almshouse and its management, and therefore no responsibility for the acts or omissions of persons employed by said overseers in carrying on the affairs of said almshouse.</p> <p>“ 4. That Hiram Crawford was not at the time of the alleged injury a servant or agent of the town so as to render said defendant town liable for his acts of negligence.</p> <p>“ 5. That the defendant town cannot be said to be engaged in a commercial enterprise for gain or profit because the overseers of the poor in the exercise of their discretion and judgment carried on certain farming operations on the land connected with the almshouse, applying the produce to the support of inmates, and selling or exchanging. any surplus produce not needed for that purpose, adding the proceeds thereof to the fund set apart and appropriated for the support of poor.</p> <p>“ 6. That the evidence discloses no facts which would warrant the jury in finding that the defendant town was carrying on a commercial enterprise for gain or profit.</p> <p>“ 7. That the overseers of the poor of the defendant town ■ cannot make said town liable for their acts, or the acts of their agents, unless such acts are specially authorized by a vote of the inhabitants of said town, in public town meeting assembled.</p> <p>“8. That a blind man who goes about unattended in the public streets takes more than ordinary risks, and must exercise more than ordinary care in avoiding danger from passing vehicles.</p> <p>“ 9. That the plaintiff, being blind and infirm, and going about the streets unattended, took more than ordinary risks, and was bound to exercise more than ordinary care to avoid danger from passing vehicles.</p> <p>“ 10. That if the plaintiff’s negligence contributed in part to cause the accident, the plaintiff cannot recover, even if it appears that the defendant was also negligent.</p> <p>“ 11. If the plaintiff could by reasonable care have ascertained before attempting the crossing that a team was approaching, and its direction, he should have done so, and waited until the danger was past.”</p> <p>The judge refused these requests for instructions, and gave other instructions to the jury, which, so far as material, were as follows:</p> <p>“ It would be a question for the jury, upon finding the facts stated, and upon all other facts proved, with their reasonable explanations, whether the person who injured the plaintiff by his careless, negligent, or reckless driving of the team of the defendant was then, and in so doing, a servant of the defendant, and doing work for the immediate benefit and profit of the defendant, and not in work which had any direct relation to the deféndant’s legal duties in the maintenance of its poor, or in a work necessary or reasonably incidental to the discharge of these duties. ...</p> <p>“ If you should find these facts to be proved by a clear preponderance of the evidence, and you should also find that this Hiram Crawford was doing business not directly or incidentally related to the maintenance of the poor and the conducting of the almshouse and farm for the benefit of the poor of the town of Wellesley, then you might find that he was in legal effect a servant of the town, for whose carelessness upon the road, in driving the defendant’s team, the defendant might become responsible. Otherwise, if you do not find these facts, the fundamental fact to be established by the plaintiff is not in the case, and you would go no farther. You simply would find that the responsibility of the town was not established, and that would lead you, of course, to a verdict for the defendant. . . .</p> <p>. “ If you find the responsibility, then you come to the question of care on the part of the plaintiff. . . .</p> <p>“ Now, in considering that question, you assume exactly what • • the law provides: that every person, of any age, having any bodily infirmity, has a right to the use of the highway, either on foot or with any kind of vehicle or horses. . . . But while I state that these are the rights, these rights are to be exercised with reference to the abilities of each person to take care of himself and to take care of the rights of others. A blind person has a right to walk the streets, walk anywhere where a person with full sight has a right to walk; a person who cannot hear has the same right to walk anywhere. A lame person has a right to walk anywhere. But, in view of the incapacities for taking care of himself which a blind man has, and of which he must be conscious, the exercise of ordinary prudence and caution would require him to conduct his care with reference to his inability to see. And if there was an inability to hear, so that a man could not take warning by the hearing of what was about him, or likely to put him in jeopardy, his wariness, in view of his infirmity of hearing, would be nothing more than the ordinary prudence and caution of a man' who cannot take care of himself by listening. ... A man travelling has a right to suppose that the persons whom he sees on foot, unless they appear to be unusually incapable of taking care of themselves, can take care of themselves as men ordinarily do. If he sees that a man is blind, or if he knows the fact by an acquaintance with him, sees that he is deaf, or knows the fact by an acquaintance with him, he should take that into account in driving. But if he knows nothing and sees nothing to indicate that a person crossing a highway upon which he is travelling cannot take as much care of himself as men ordinarily do, he has a right to drive upon the supposition that, he will do what other persons will; upon the supposition that he will see the team approaching; upon the supposition that he will hear the team approaching ; simply because there is nothing which to the driver brings notice that the noise or the sight of his team will not afford the same notice to the foot traveller that they would to all persons.</p> <p>“ Applying these -considerations, if you find the responsibility of this town is established, was the plaintiff in the exercise, in view of his infirmity of sight and his infirmity of body, of ordinary prudence and caution in being where he was at the time when he was struck by the defendant’s team. Taking into account what you have seen of him, of his intelligence, taking into account his description of how much physical strength he had, and what control he had of himself and of his sight, you will determine that question, not disregarding the particular facts out of which this collision arose. . . .</p> <p>“ This plaintiff says, ‘ This man Crawford was the servant of this town of Wellesley, as he might have been the servant of any store-keeper, farmer, or mechanic of the town of Wellesley, and when I was exercising all the care which a man like me could be reasonably asked to use, this man, seeing and knowing enough to require him to adapt the driving of his team to my rights on the crossing, ran against me; no want of care on my part contributed to my injury; it was solely due to the misconduct of Crawford.’ The plaintiff’s attitude in this case is in effect thus stated, and that attitude he must maintain, so as to satisfy you that Crawford, and Crawford only, by his misconduct in the driving, caused this injury.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff’s intestate, through the negligence of the defendant’s servants, by the fall of a derrick while being used by them in rebuilding a bridge. At the trial in the Superior Court, before Pitman, J., the plaintiff offered to prove the following facts. Early in 1882, a bridge across the Monatiquot River, and a part of Quincy Avenue, a public highway duly laid out in the defendant town, became unsafe.

<p>Promissory Note — Partnership — A uthority of Partner — Notice — Striking out Indorsement.</p> <p>In an action by a bank against copartners upon a note of the firm payable to another firm, which was an ostensible firm only, made by one partner and indorsed by him in both firm names, each of which contained his surname, and discounted by the plaintiff, his copartners set up that he acted without authority, and that the plaintiff had notice that he was using the note for his private purposes, and there was evidence that such partner had no actual authority to sign the name of the firm, and that the proceeds never came to its credit; that the plaintiff had notice that he was the one whose surname was in each firm name, and that he was the only member of the payee firm; that this firm had an account with the plaintiff, the checks against which were habitually made by him; that the plaintiff knew that he made and indorsed the note; that he presented it for discount, which was effected by crediting the proceeds to such ostensible firm’s account, from which he afterwards drew them. At the trial, the plaintiff struck out the name of the firm of which the defendants were members as indorser; and the judge ordered a verdict for the plaintiff. Held, that the case should have been submitted to the jury; and that the striking out of the firm’s name as indorser did not affect its liability as maker.</p>

<p>Sale of Land on Execution — Officer's Return.</p> <p>Land was duly levied on and sold, and the deputy sheriff making the sale, after delivering the deed, which was duly recorded, prepared a certificate of his doings, and died seven years later leaving it unsigned and not returned into court. Soon after his death, the sheriff of the county, who was a deputy sheriff at the time of the issue of execution and the sale, completed the return. Held, that the validity of the levy and sale was unaffected by the delay in making the return, and that the officer completing it was duly authorized to do so under the St. of 1885, c. 125, § 1.</p>

<p>Variance — Amendment — Sale—Fraudulent Representations.</p> <p>If evidence that a sale, alleged in the declaration to have been made by a certain person, was made by a firm of which such person was a member, constitutes a variance, it may be cured at any time by amendment.</p> <p>Representations by a seller, known to be acting as such by the purchaser, that a bond secured by a mortgage of a railroad was an A No. 1 bond, and that the mortgaged railroad was good security for it, were held not to be actionable, although false and made in bad faith.</p> <p>No exception lies to the exclusion of evidence, the bearing of which upon the questions at issue is not disclosed by a bill of exceptions.</p>

Tort by the assignee of an assignee in insolvency, to recover money paid by the insolvent debtor to a creditor in fraud of the insolvency laws. Writ dated October 17, 1887.

<p>Tax on Real Estate — Payment under Protest — Recovery back — Abatement — Eminent Domain — Agreed Facts — Waiver</p> <p>Owners of real estate, including trustees with the legal title, properly taxed for it, are personally liable for the tax, and are not discharged by a subsequent taking thereof under the right of eminent domain.</p> <p>An action to recover back the amount of a tax paid under protest, a part of which is legal, cannot be maintained, the only remedy being by an application for an abatement; and a submission of the case upon agreed facts reciting that the plaintiff is to recover if “ not liable ” for such illegal portion, is no waiver by the defendant, and confers no jurisdiction.</p>

<p> Liability of Corporation for a Libel. </p> <p>A corporation is liable in damages for the publication of a libel, as it is for its other torts.</p> <p>At the trial of an action for libel against a railroad corporation, there was evidence that the plaintiff was a railroad ticket broker in a city where the defendant had its chief terminus and its principal managing agents were, including its general passenger agent; that a libellous extract from a newspaper, to the effect that' the plaintiff was neither safe nor reliable to deal with, was kept posted forty days in a conspicuous place in an office of the defendant in the same street with the plaintiff’s office, and arranged especially for the sale and advertising of railroad tickets under the charge of a ticket agent and clerks employed by it; and that the general passenger agent, although notified, refused to interfere with such posting. Held, that there was evidence for the jury that the defendant had published the libel or ratified its publication, or that it was published by a servant of the defendant’s in the course of his employment.</p>

<p>Contract for commissions on the sale of real estate for the defendant. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts, in substance as follows.</p> <p>The plaintiff is a real estate broker, and the defendant the owner of real estate in Cambridge, which she desired to sell, and placed in the plaintiff’s hands for that purpose. On August 2, 1887, the plaintiff received a card from the defendant, requesting him to call and see her, which he did, and on the next day communicated to the defendant an offer which he had received from Francis L. Brown, in consequence of which the defendant and Brown met at the plaintiff’s office, on August 5 or 6, and agreed on terms of purchase and sale. The plaintiff never knew Brown until he came to him and made an offer for the property, and never inquired about his responsibility.</p> <p>They again met on August 8, and a written agreement, drawn meanwhile by the plaintiff, was submitted to them for signature as agreed, which agreement the defendant took to show her attorney. On August 10, the plaintiff received a letter from the defendant's attorney, requesting him to call at the attorney’s office, and there the plaintiff signed the contract declared on, which was as follows:</p> <p>“ Boston, Mass., Aug. 10,1887. It is agreed that if Henry B. Ward, as broker, shall effect a sale of Elizabeth Cobb’s estate, 855 Main Street, Cambridge, he shall receive a commission of two hundred dollars in full for his services.”</p> <p>Subsequently, the defendant and Brown signed an agreement in writing, dated August 16,1887, which recited that the defendant “ agrees to sell ” and Brown agrees “ to purchase ” the real estate in question: “said premises are to be conveyed within fifteen days from this date by a good and sufficient warranty deed ” of the defendant, “ conveying a good and clear title to the same free from all incumbrances, except a mortgage held by the Massachusetts Hospital Life Insurance Company, . . . which mortgage . . . Brown agrees to assume and pay, and hold said Cobb harmless therefrom, but the deed is not to be delivered unless and until the Massachusetts Hospital Life Insurance Company releases said Cobb . . . from all liability on the said mortgage note ”; and for such deed and conveyance Brown agreed to pay a certain sum “ for the equity of said Cobb in said estate, over and above said mortgage, interest, and taxes, of which two hundred dollars have been paid this day,” and the remainder was to be paid in cash upon the delivery of the deed; “ and the sum this day paid is to be forfeited to said Cobb if said Brown does not keep and perform this contract as above set forth.” From August 10 the plaintiff had no communication with the defendant or Brown, until after the signing of the above agreement.</p> <p>The defendant prepared and executed a deed of the premises, and placed it in the hands of her attorney to be delivered to Brown, in accordance with the terms of the above contract of purchase and sale. Brown was unable to perform his part of the agreement, and applied to the attorney on three several occasions for an extension of time, amounting in all to about two weeks and a half. The attorney, on each occasion, told Brown that he had lost his rights; but, while disclaiming authority to extend the time, stated that, if Brown would pay the money at the end of the time asked for, he would deliver to him the deed, unless otherwise instructed by the defendant. At the end of the two weeks and a half, the attorney met Brown, who made no further payment or tender, and told him the matter was at an end. The trade thereupon fell through, and the defendant retained the forfeit money, communicating the above facts to the plaintiff.</p>

Contract. Trial in the Superior Court, without a jury, before Bacon, J., who found for the defendant, no exception to any ruling being taken at the trial. The plaintiff duly filed a motion for a new trial, for the following reasons: “1. Because the finding of the court is against the evidence and the weight of the evidence. 2. Because the finding of the court is against the law.” At the hearing upon the motion, the judge ruled that, under the Pub.

<p>Contract of Life Insurance — Rescission — Reasonable Time.</p> <p>A policy of life insurance, not binding on the company through an act of its agent, was, upon the insured’s paying the first premium by a note, delivered to him in May, 1886, but he did not then look at it or discover the error for a month, at which time he was temporarily ill at home. After the middle of August, when the note became payable, a demand was made on the insured, and he refused to pay, saying that the policy was “ no good.” An action was brought on the note in November, but he did not offer to rescind the contract until the next November. Held, that his attempt to rescind the contract was not made within a reasonable time.</p>

<p>Building Contract—Contractor — Agent — Instructions to Jury.</p> <p>At the trial of an action to recover the price of lumber furnished for a house, there was evidence that it was bought by one R. on behalf of the defendant, and upon his credit, which R. had authority to pledge. The defendant introduced evidence, which was controverted, tending to show that the defendant and R. made a building contract, by which the latter was to build the house and furnish all the materials, and the defendant was to pay him a fixed sum. The presiding judge instructed the jury, that, if there was at the time when R. ordered the lumber from the plaintiff a contract between R. and the defendant by which R. was to build a house for a certain sum, then R. bought the lumber for himself and not for the defendant, “ and, as matter of law, the defendant cannot be held liable; an independent contractor cannot be an agent; if you are satisfied that the relationship of contractor and contractee existed ” between R. and the defendant, “ then your verdict must be for the defendant.” Held, that the instructions were erroneous.</p>

<p>Assault — Owner’s Retaking of Property by Force.</p> <p>One 'whose property is taken wrongfully by another may thereupon retake it from him, using no more than reasonable force; and what is such force is a question of fact for the jury.</p>

<p>Personal Injuries—Master and Servant — Negligence of Fellow Servant —Proper Tools and Appliances — Evidence.</p> <p>A foreman, employed by a firm of contractors and in charge of a building in process of erection, undertook to move a derrick with the assistance of laborers in their employ, one of whom had worked about derricks more or less for five years; and the derrick, through the breaking of a rope furnished by them, fell and injured a carpenter, who was also employed by them and at work on the building under the foreman’s direction. There were at hand, furnished by the contractors, all the tools, materials, and appliances needed to move the derrick safely. Held, in an action against the contractors to recover for the injuries, that, in the absence of evidence that the foreman was not a proper person to he intrusted with the work, or that the rope which broke was not strong, there was no negligence shown on the part of the contractors.</p> <p>Evidence of a conversation with the foreman after the accident, in which he told how it happened, was held to be rightly excluded.</p>

Tort. The declaration was as follows: “ And the plaintiff says, the defendant has converted to his.own use large sums of money, the property of the plaintiff, and in the possession of the defendant, and to him delivered by the plaintiff as his (the plaintiff’s) attorney for the payment of certain bills of the plaintiff.” Answer, a general denial. Trial in the Superior Court, before Lathrop, J., who allowed a bill of exceptions, in substance as follows.

Action on the Pub. Sts. c. 175, to recover possession of certain premises in Weston. Writ dated September 24, 1887. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal; on an agreed statement of facts, which so far as material was as follows.

<p>Bond — Declaration — Demurrer — Seal — Appeal.</p> <p>The declaration of a corporation alleged that “the defendant executed to it” a bond, reciting that one “as principal,” and three, including the defendant, “ as sureties, . . . are liolden and stand firmly bound unto ” the corporation in a certain sum, the condition being the faithful performance by such principal of his duties as its treasurer, and signed by the three only, each for a part of the penalty; that the treasurer was unfaithful, and converted to his own use its property, which was described; “ and so the plaintiff is entitled to recover of the defendant a sum ” equal to that for which he signed. Held, on demurrer, that the declaration imported a state of facts which, if proved, would entitle the plaintiff to recover.</p> <p>The objection that the defendant’s signature was not under seal, not being specified in the demurrer, was held not to be open on appeal.</p>

Tort for personal injuries occasioned to the plaintiff by an alleged defect in Warren Bridge, a part of a highway in the defendant city.

<p>Tort for malicious prosecution for larceny. At the trial in the Superior Court, before Thompson, J., the plaintiff, as part of her case, was allowed, against the defendant’s objection, to introduce in evidence the testimony of witnesses to show her general reputation in the community for honesty of character.</p> <p>The defendant introduced evidence tending to show that on the day of the larceny, July 27, 1887, he was absent from his house, and that upon his return the next morning one Madden, his hired man, informed him that his (Madden’s) wife had confessed to him that she, in company with the plaintiff and another, had broken into the defendant’s premises, and stolen his wine; that one Hewett, a boy, also informed him that he saw an axe, which was found on the premises, in the hands of' the plaintiff’s daughter, on July 27; that Madden and Hewett went, on July 28, before a trial justice, and related the foregoing facts and confession; that the trial justice informed Madden that the defendant was the proper person to make a complaint, which Madden communicated to the defendant, who thereupon appeared, on July 29, before the trial justice with Hewett and Madden, and swore to the complaint against the plaintiff for the larceny of the wine. ' The defendant then offered in evidence the statements of Madden and Hewett to the trial justice on July 28, but the judge excluded them, as not having been made in the presence of the defendant.</p> <p>The plaintiff was allowed, against the' defendant’s objection, to put the following question to the plaintiff’s husband, who was a witness: “ In conversation with Levering, the defendant, before the complaint, did he say that he had heard that Mrs. Madden had been in Dedham jail?” To which the witness answered in the affirmative.</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Tort by a father for the loss of earnings of a minor son, through personal injuries occasioned to him by the negligence of the defendant. Writ dated June 28, 1887. At the trial in the Superior Court, before Sherman, J., the defendant admitted that the boy had received the injuries alleged, for which it was responsible, but contended that the plaintiff had forfeited his right to the earnings of his son by emancipating him.

Petition under Pub. Sts. c. 176, inserted in a writ of original summons, dated August 26,1887, to try the title to a parcel of land in Wrentham. The respondent appeared specially, and filed a plea to the jurisdiction. Hearing before Morton, C. J., who reported the case for the consideration of the full court, as follows.

<p>Contract to recover the amount of a check. Writ dated June 30,1887. At the trial in the Superior Court, before Barker, J., the following facts were agreed, with liberty to draw inferences of fact therefrom.</p> <p>The plaintiff and the defendant were each duly established national banking associations, the former located at Boston and the latter at St. Louis. On October 29, 1886, the Fidelity National Bank of Cincinnati, Ohio, wrote to the plaintiff, saying: “ Enclosed herewith, we hand you a copy of our last statement, and beg to offer our services for making collections in the West; we will credit at par sight items on all points in Ohio, Indiana, and Kentucky where there are banks, subject to payment, and make collections on same points, remitting in New York exchange weekly if you desire, without charge; or will collect everything in the United States west of Pennsylvania and remit every ten days at par.” On November 3, 1886, the plaintiff replied, saying: “We will send you our Ohio, Indiana, and Kentucky items upon the terms offered. ... We can send you our St. Louis items, if you desire, upon the same terms, viz. weekly remittances at par.” On November 5, 1886, the Fidelity Bank responded, saying: “ Will take what you propose with pleasure, including the St. Louis items, making remittances to you weekly at par.”</p> <p>In pursuance of the arrangement set forth in these letters, the plaintiff from time to time after November 5, 1886, sent to the Fidelity Bank various drafts and checks, and that bank remitted to the plaintiff weekly, until about June 18,1887. The plaintiff did no business with that bank other than sending to it checks and drafts in pursuance of that arrangement, but that bank never sent any checks, drafts, or other remittances to the plaintiff for collection, except in four instances, the last of which was on May 5, 1887, all of which were paid, and the plaintiff never made any collections for it except in those instances, as it had another bank in Boston as its correspondent through which it made collections in Boston and its vicinity. It was the custom of the Fidelity Bank to charge back to the plaintiff, and to return to it by mail, checks and drafts sent to it by the plaintiff which were not paid, and there were several instances of that kind.</p> <p>On June 18, 1887, the plaintiff then holding the check in question, which was drawn by J. G. Brandt for $1900.66, on the German American Bank of St. Louis, payable to the order of Hathaway, Soule, and Harrington and by them indorsed to the plaintiff, sent it, with other checks and drafts, by mail to the Fidelity Bank, indorsed by stamp as follows : “ Pay Fidelity National Bank of Cincinnati, O., or order, for collection for Manufacturers’ National Bank of Boston, Mass. F. E. Seaver, Cashier.” This check, together with the other checks and drafts sent with it, each of which bore a similar indorsement, was accompanied by a slip or memorandum, which was headed “ Checks forwarded to the Fidelity National Bank, Cincinnati, for credit to account of the Manufacturers’ National Bank,” and embraced ten items including the check in question, the sight items amounting to $3501.48, and one item of $165.55 being on one day’s sight, with an order not to protest. The Fidelity Bank received these checks and drafts in due course of mail, on June 20, 1887, and on that day mailed to the plaintiff a postal card, signed by its cashier, stating in reply, “We credit subject to payment $3501.48.” On the same day the Fidelity Bank passed to the credit of the plaintiff the amount, $3501.48, shown on the slip, and sent the check in question by mail to the defendant, having first charged it to the defendant and indorsed upon it by stamp the following words: “For collection for account of the Fidelity National Bank, June 20, 1887, Cincinnati, O. Ammi Baldwin, Cashier.”. The plaintiff did not know of this indorsement until after the appointment of the receiver for that bank. The defendant received the check in question on June 21,1887, too late to send it through the clearing-house on that day, and sent it on June 22, 1887, through the clearing-house at St. Louis, to the German American Bank, the drawee, for payment, and the same was paid by that bank to the defendant on that day, and the defendant credited the amount on its books in its account with the Fidelity Bank.</p> <p>The Fidelity Bank suspended payment, and did not open its doors for business on June 21,1887, or at any time afterwards. Its drafts, fraudulently drawn by its vice-president upon the Chemical National Bank of New York for a very large amount, went to protest in New York city on June 17,1887, payment thereof having been stopped by the Fidelity Bank; but it continued to do business up to the close of banking hours on June 20,1887. Its failure became known to the plaintiff on the morning of June 21,1887, and to the defendant after the receipt of the check in question, but before it had collected it. On that day the plaintiff sent a telegram and wrote a letter to the Fidelity Bank, which were duly received, to deliver all checks, drafts, and notes to the Merchants’ National Bank for its account, and on the same day the Merchants’ Bank demanded of the Fidelity Bank all checks, drafts, and notes received by it from the plaintiff. The Fidelity Bank delivered nothing to the Merchants’ Bank then, but some days afterwards delivered to it sundry checks and drafts which had been mailed in Boston by the plaintiff to the Fidelity Bank for collection on June 20, 1887.</p> <p>On June 21, 1887, the plaintiff also telegraphed to the German American Bank to notify the bank presenting the check in question for payment to hold the funds for the plaintiff, and that bank, on June 22,1887, showed the telegram to the defendant, and directed it to hold for the plaintiff the amount collected on the check. Such amount had then been credited, but without the knowledge of the plaintiff, to the Fidelity Bank on the books of the defendant.</p> <p>On June 22,1887, the plaintiff having heard from the German American Bank that it had paid the check, through the clearinghouse, to the defendant, and had notified the defendant of the plaintiff’s telegram, telegraphed the defendant to hold for account of the plaintiff the proceeds of the check. On the same day the plaintiff wrote to the defendant’s cashier the following letter, which was received in due course of mail, saying: “We are advised by the German American Bank that at the time you collected of them the check of $1900.66, indorsed by us for collection to Fidelity National Bank, which check was collected by you this day, you were notified by them, at our request, to hold the proceeds for our account. We have also telegraphed to you to the same effect to-day. You will therefore hold the amount collected subject to our order, or remit the amount to us, less exchange. We shall hold you accountable for any other disposition of the funds, the title to this paper being in us at the time of its collection.” In reply to this, the defendant, on June 24, 1887, sent to the plaintiff the following letter, which the plaintiff received: “In reply to yours of 22d inst., we desire to say that the item referred to was placed to credit of the Fidelity National Bank in the usual way, and you are respectfully referred to the receiver of that bank.”</p> <p>The comptroller of the currency placed a national bank examiner in charge of the Fidelity Bank and its assets on June 21, 1887, who continued in charge thereof until a receiver was duly appointed, on June 27,1887, to take charge of the assets and property of the Fidelity Bank as an insolvent bank. The amount collected on the check has never been paid to the plaintiff, and the defendant held the same, making no claim itself to the same, but contending that it belonged to the receiver as a part of the assets of the Fidelity Bank, and the receiver claimed the same of the defendant. On June 18,1887, when the check in question and the other checks and the draft were sent by the plaintiff to said Fidelity Bank, and irrespective of them, the latter was, and has ever since continued to be, a debtor to the plaintiff to a large amount.</p> <p>The judge, from the agreed facts, drew the inference of fact that at the time when the .Fidelity Bank received and credited the check in question, and sent it to the defendant, it acted in good faith and did not then intend to fail; to which inference the plaintiff excepted, as not warranted by the agreed facts.</p> <p>The judge refused to rule, as requested by the plaintiff, that the plaintiff was entitled to recover, and found for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Contract by a seaman against the master of a vessel, to recover a balance of wages alleged to be due. The answer denied liability, and set up a release, executed before a shipping commissioner, under the U. S. Rev. Sts. § 4552. After the former decision, reported 146 Mass. 191, the case was again tried in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows.</p> <p>Evidence was introduced tending to prove the following facts. The plaintiff was a Finnish sailor, who could not read or write the English language, and spoke it very imperfectly. In June, 1883, he shipped on the defendant’s vessel as a carpenter, for wages at the rate of twenty-eight dollars per month, ’but subsequently was disrated by the master to the grade of ordinary seaman, and his wages reduced to fifteen dollars per month. Upon his arrival in Boston, at the end of the voyage, the plaintiff went, with others of the crew, before a United States shipping commissioner of the port, the master not being present at the time. The balance of wages due to the plaintiff was reckoned at the rate of fifteen dollars a month.</p> <p>The plaintiff expressed dissatisfaction at the amount of the balance due him, claiming his full wages of twenty-eight dollars per month. The commissioner offered him the balance found to be due him at fifteen dollars per month, and asked him to sign a release, with the rest of the crew, in his book kept for the purpose. The plaintiff hesitated for ten or fifteen minutes, and refused to sign the release, hut finally accepted the balance offered him, and signed the release. The release, which followed the words of the U. S. Rev. Sts. § 4552, was not read to the plaintiff by the commissioner, nor its legal effect explained to him, but the calculation of his wages, as therein expressed, was explained to him by the commissioner before the plaintiff signed the release. The plaintiff did not ask to have the release read to him, but relied upon what the commissioner told him.</p> <p>The plaintiff testified that he did not know the contents of the release when he signed it, and did so thinking it was a mere receipt for the money actually received; and that the commissioner told him to sign, and that he could go to the master afterwards. This was denied by the commissioner, who testified that he did not say anything of the sort, and that he did his best to explain the calculation of his wages to the plaintiff, who seemed, when he signed the release, to understand what he was doing.</p> <p>It appeared that the plaintiff could sign his name, but could not read or write English. The plaintiff did not afterwards go to or attempt to see the master personally, but his counsel wrote him and demanded the balance claimed in this suit.</p> <p>The defendant requested the judge to rule that the plaintiff could not recover. The judge declined so to rule, and submitted the case to the jury. The jury returned a verdict for the plaintiff ; and the defendant alleged exceptions.</p>

<p>Writ of Review— Time of Filing — Breach of Bond for Review — Judgment and Execution.</p> <p>A bond, entered into upon a petition for a review of a judgment, provided that the petitioner, as obligor, should “forthwith prosecute” the review, and was duly approved by the court, which, however, fixed no time for bringing the writ. Held, that the writ of review was to be brought forthwith, or within a reasonable time, and that, as it was not brought for more than a year, there was a breach of the bond.</p> <p>The obligee on the bond, wbo had no just claim against the petitioner, and had wrongfully recovered judgment against him, made a reconveyance to him of property sold as his on an execution duly issued upon the judgment. Held, in an action on the bond, that judgment was properly rendered for the penalty thereof, but that execution rightfully issued for nominal damages only.</p>

<p>Tort for the conversion of certain personal property attached by the defendant, a deputy of the sheriff of the county of Suffolk. Writ dated July 8, 1885. The action was brought originally in the Municipal Court of the city of Boston, and, after judgment for the plaintiff in that court, an appeal was taken to the Superior Court. Trial before Staples, J., without a jury, who reported the case for the consideration of this court, in substance as follows.</p> <p>■ At the trial, it appeared that in January, 1885, one Coen, being the owner and in possession of certain goods contained in the store No. 143 P Street, South Boston, gave to- the plaintiff a mortgage covering a part of them, to secure sundry promissory notes; that prior to May 28,1885, the plaintiff had purchased goods to a large amount from Coen, and there was an unsettled account between them, and many of the mortgage notes were not due at that date, and it was understood between them that, after crediting the plaintiff with the rent of the store on the account, the balance was to be applied to the mortgage; that on May 28, 1885, the defendant, in his capacity as such deputy, attached the property of Coen on a writ, in the common form of a trustee writ, in favor of Claflin, Allison, and Company, the plaintiff being summoned as trustee in that action “ to appear and show cause as within directed”; that among the goods so attached were a portion of the goods covered by the mortgage, and that the plaintiff thereupon served upon the defendant a notice of his mortgage, in accordance with the provisions of the Pub. Sts. c. 161, § 75, and that on June 16,1885, the defendant, upon notice from Coen to remove his keeper, removed from the store goods sufficient to satisfy his attachment, and among them some of the mortgaged property, being that alleged to have been converted; that the plaintiff thereupon made demand upon the defendant for the goods covered by the mortgage and removed by the defendant, but the defendant refused to deliver them up.</p> <p>The defendant testified that he tried to avoid removing mortgaged goods, and did not intend so to do.</p> <p>It also appeared that the trustee writ was returned into the Municipal Court on June 30, 1885, and the trustee appeared and answered, on October 12, 1885, “Ho funds”; that the action was tried and judgment was entered for the plaintiffs, and an appeal was taken to the October term of the Superior Court, 1885; that the trustee then, in the Superior Court, answered, “Ho funds”; that thereafter, on December 5, 1885, interrogatories to the trustee touching the mortgage and the other dealings of the alleged trustee with Coen were filed, and duly answered; and that on January 25, 1886, the trustee was discharged by the consent of the plaintiffs, Claflin, Allison, and Company.</p> <p>Upon this evidence the court ordered a nonsuit of the plaintiff, upon the ground that his action was prematurely brought. If the nonsuit was rightly ordered, the same was to stand; otherwise, the nonsuit was to be removed, and judgment was to be entered for the. plaintiff in the sum of $155, with interest from the date of the demand to the date of-the judgment.</p>

<p>Oral Agreement — Executed Consideration — Burden of Proof.</p> <p>If an action is brought for goods sold and delivered and for money lent, it is a good defence that the goods were delivered and the money handed over as orally agreed by the plaintiff for the use of money already supplied him. by the defendant; and if this defence is set up, the burden of proof does not shift, but is on the plaintiff throughout to prove that the goods were sold and the money was lent.</p>

<p>Contract by the plaintiffs, doing business under the firm name of C. E. Folsom & Co., for breach.of a covenant for quiet enjoyment under a lease. At the trial in the Superior Court, without a jury, before Barker, J., the evidence was substantially as follows.</p> <p>In April 1886,' John D. Bates, the owner of a building on Hamilton Street in Boston, was in Europe, the building during his absence being in charge of his agent, Edward F. Thayer. Thayer made out in duplicate a writing, dated April 12, 1886, purporting to be a lease of the building from Bates to the defendants, for the term of four years and three months, at a rental of $2,750 per annum, payable monthly, and containing, among other things, a covenant against underletting without the lessor’s written permission. This instrument was signed in duplicate by the defendants only, both individually and as a firm, and while it bore a seal intended for the seal of Bates, it was not signed by him or by any one in his behalf. Trusting to their supposed leasehold title, the defendants entered upon the premises, put in fixtures at great expense, advertised themselves as located in the building, and established their business there, and paid rent monthly, according to the terms of the instrument referred to. Thayer told the defendants, that, as long as they paid the rent, it was evident that they were occupying the building according to Bates’s, permission. The defendants then gave to the plaintiffs a written lease of the ground floor and basement of the building, for a term of four years and three months from October 1,1886, at a rental of one thousand dollars per annum, the lease containing the following covenant: The plaintiffs and their representatives, “ paying the rent as aforesaid and performing the covenants herein contained on their part to be paid and performed, shall peaceably hold and enjoy the said rented premises without hindrance or interruption ” by the said defendants, or any person or persons whomsoever. Upon the making of the lease from the defendants to the plaintiffs, the latter took possession of the premises demised to them, with the knowledge of Thayer, who still continued to receive rent from the defendants.</p> <p>Subsequently, within a month or six weeks after April 12, 1886, Bates returned to Boston. When he found that the defendants were occupying the building, and that they had under-let a portion of it to the plaintiffs, and that the plaintiffs were dealers in paints, varnishes and oils, he refused to execute the instrument referred to, or any lease in writing, to the defendants while the plaintiffs were there, and so told them; and also that the plaintiffs must go, and the defendants too, if they could not induce the plaintiffs to go. Several months afterwards, Bates, without any entry for breach of condition, sent the following notice to the plaintiffs, and a similar notice to the defendants: “ Boston, July 20, 1887. To Messrs. C. E. Folsom & Co., 16 Hamilton Street. Gentlemen, 1 have this day notified Messrs. Bird and Stevens, occupying the premises belonging to me, numbered 14 and 16 Hamilton Street, in this city, to vacate the same on the first day of September next. Having been informed that you are occupying a portion of said premises under a lease of the same to you by Bird and Stevens, I desire to notify you that the latter had no legal right whatever to give you such a lease, and that, if you hold over after the first day of September next, I shall take the necessary legal steps to terminate your occupation of the premises. John D. Bates.” The defendants were desirous to have the plaintiffs go out, so that they themselves could remain, stating that they would pay the plaintiffs’ expenses of moving, and telling them that, if they went, the defendants would not be obliged to go, and that Bates would give them a lease if the plaintiffs went, and not before; but that if the plaintiffs did not go, then that both plaintiffs and defendants would be driven out by Bates; but the defendants never notified the plaintiffs in writing to vacate, and continued to pay their rent. The plaintiffs vacated the premises before September 1,1887, by reason of the notice from Bates, and the next day after they vacated Bates gave a written lease of the building to the defendants, who continued to occupy it.</p> <p>The defendants requested the judge to rule: “ 1. That at the time of the notice from Bates to the plaintiffs, and at the time the plaintiffs quitted the portion of the premises demised to them, the instrument of April 12, 1886, between Bates and the defendants, above referred to, was a subsisting and valid lease at law, according to its terms. 2. That the plaintiffs were not entitled to recover judgment against the defendants. 3. That the plaintiffs were entitled to recover no more than nominal damages.”</p> <p>The judge refused so to rule, and found for the plaintiffs; and the defendants alleged exceptions.</p>

Petition for partition of real estate, situated and numbered 17 on Harris Street, formerly Bartlett Street, in Boston, the property at his decease of John Coffey. Trial in this court, before Field, J., who reported the case for the consideration of the full court, the report, so far as material, being as follows.

Tort. The declaration was as follows: “ And now comes the plaintiff in the above entitled action, and says that the defendant is a corporation existing under the laws of Massachusetts; that upon the eleventh day of August, A. D. 1888, said plaintiff was driving in a buggy upon the highway in said Boston known as Charles Street toward Beacon Street; that the horse attached to said buggy was owned by the plaintiff, and was tractable and broken to harness; that the plaintiff…

<p>Landlord and Tenant ■— Lease — Tenants in Common — Tenancy at Will — Tenant at Sufferance — Rent—Parties to Action — Misjoinder.</p> <p>A tenant in common of premises and a lessee thereof under a valid written lease cannot join in an action to recover rent from a tenant at sufferance, whose tenancy at will was terminated by the lease.</p>

<p>Information in equity, at the relation of the Harbor and Land Commissioners, for the removal of the porch of the Spiritual Temple, situated on the corner of Newbury Street and Exeter Street, on the Back Bay in Boston. Hearing before W. Allen, J., who reserved the case for the consideration of the full court, in substance as follows.</p> <p>The defendants hold the premises in question under a deed from the Commonwealth, dated March 11, 1885, containing the following stipulations and agreement: “ That any building erected on the premises shall be at least three stories high for the main part thereof, and shall not in any event be used for a stable or for any mechanical or manufacturing purposes ; that the front wall thereof on Newbury Street shall be set back twenty-two feet from said Newbury Street, provided that steps, windows, porticos, and other usual projections appurtenant to said front wall, are to be allowed in this reserved space of twenty-two feet, subject to the following limitations, namely: first, that no projection of any kind (other than doorsteps and balustrades connected therewith, and also cornices at the roof of the building) will be allowed to extend more than five feet from said front wall into said space; and second, that no projection in the nature of a bay-window, circular front or octagon front, with the foundation wall sustaining the same, (such foundation wall being a projection of the front wall,) will be allowed, unless any horizontal section of such projection would fall within the external line of a trapezoid whose base upon the rear line of the aforesaid space does not extend seven tenths of the whole front of the building, nor exceed eighteen feet in any case, and whose side lines make an angle of forty-five degrees with the base; and each house in a block shall be considered a separate building within the meaning of this limitation. And said Commonwealth reserves the right to enter upon the premises by its agents, and at the expense of the party at fault, to remove or alter in conformity with the above stipulations any building or portion thereof which may be erected on the premises by said grantees, or their representatives or assigns, in a manner or to a use contrary to the above stipulations.”</p> <p>The defendants, holding a bond from the Commonwealth, dated July, 1888, for a deed of the premises with the same stipulations and agreement as the above deed, began in the latter part of 1883 to erect upon the land a building for a Spiritual Temple, with a porch at the northwest corner thereof, on Newbury Street, built of stone, fifteen feet high, with a steep slate roof seven feet high, with solid side walls projecting at right angles to the front wall of said building, into and upon the limited space of twenty-two feet. It was agreed that the porch did not come within the lines of the trapezoid described in the restrictions. The porch is closed in front by an iron gate. The walls and foundations thereof project from and are independent of the foundations of the main building, which are continuous, and are not broken at .heir junction with the foundations of the porch. The foundations of the porch are bonded into those of the main building; and the eastern foundation wall of the porch is continuous with the eastern foundation wall of the building, but is narrower and lighter; the main wall of the building with its foundation being thrown half of it upon the adjoining land, while the wall of the porch with its foundation is entirely on the defendants’ land. The southern foundation wall of the main building is continuous, and unbroken and unchanged in construction where that of the porch enters it.</p> <p>The lower courses of the underpinning of the porch project three and four inches beyond the five feet space; but the rest of the structure above these courses is wholly within the five feet. The porch is open within from the bottom to the top, and serves only as a protection to the main entrance of the building. The exterior of the porch was completed in September, 1884, and that of the entire building in the course of the autumn of that year. The building was finished and ready for occupancy in June, 1885.</p> <p>Evidence was introduced tending to show that, at the date of the deed to the defendants, porches were usual projections upon buildings in Boston.</p>

Petition in equity, by the trustees under the will of David Chapin, who died on February 29, 1880, against his children and grandchildren, for instructions as to the distribution of á trust fund.

<p>Practice— Offer of Judgment— Taxation of Costs.</p> <p>An offer of judgment, under the Pub. Sts. c. 167, §§ 65, 66, “in the sum of four hundred and seven and dollars, principal and interest due to date and costs,” is an offer for §407.72 only, which sum must be taken to represent the principal and interest offered, if not the costs.</p>

<p>Bill in equity, filed on October 6, 1888, by the trustee of a devisee under the will of Maria Dean, to restrain the executor thereof from selling real estate of the testatrix beyond what was necessary for the payment of debts, legacies, and charges of administration, in the settlement of the estate. Field, J., reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Bond for a Review — Discharge — Amendment of Declaration.</p> <p>A bond for a review, given under the Pub. Sts. c. 187, § 19, after the filing of a petition, under § 17, to vacate a judgment rendered against two defendants upon a promissory note, made by one of them and indorsed before delivery by the other, under a declaration informally setting forth the liability of both in a single count, will not be discharged, nor the sureties thereon released, by an amendment filed after the vacation of the judgment, setting forth accurately the liability of the defendants respectively in separate and distinct counts.</p>

<p>Tort for personal injuries occasioned by an alleged defect, consisting of a hitching post, in Charles Street in Newton. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, which, so far as material, was as follows.</p> <p>. The following facts were not disputed. Charles Street was a public way leading from Auburn Street in that part of Newton called Auburn dale to the Riverside station, and during certain seasons of the year was much travelled. Sidewalks had been constructed on both sides of the street by the city of Newton, but it did not appear in evidence that the sidewalks had been located of any definite width. The post in question stood within the limits of the highway in front of the residence of one Roberts. The width of the carriageway, or that portion of the street wrought for travel by carriages, was sixteen and a half feet. The evidence as to the width and condition of the sidewalk, on the side where the post stood, was conflicting.</p> <p>The defendant offered evidence tending to show that the carriageway was what is called a two-track road; that the travelled part of the sidewalk, on the side of the street where the post stood, was five feet nine and five eighths inches wide; that between the sidewalk as thus constructed for travel and the edge of the carriageway was a strip or border of grass one foot and three and five eighths inches wide, which sloped towards the carriageway ; that this border of grass existed at the time of the accident, the post in question being set within it, about two inches from the edge of the carriageway; and that the sidewalk on the other side was eight feet one and one half inches wide.</p> <p>The evidence of the plaintiff tended to show that the distance from the travelled path of the sidewalk to the outer edge of the post was eleven and one half inches; that at the time of the accident there was no grass on the strip; that the sidewalk had been constructed the autumn before; that the highway was travelled close to the post, and that the strip or border referred to was not grassed at the time, the space between the post and travelled part of the, sidewalk being gravelled; that the post was about four feet high, of a dark color; that the accident occurred after dark, about seven o’clock P. M., on March 16, 1885; that the plaintiff and one Woodward were riding in a wagon, Woodward driving to his home on a private street leading out of Charles Street, where he had lived many months; that neither Woodward nor himself knew there was a post there; that as they drove into Charles Street and came near Roberts’s house, driving at the rate of about five miles an hour, they overtook a wagon driven by one Dow, who was walking his horses; that as they came up to Dow’s wagon he turned his horses to the right to enable them to get by, and Woodward turned his horse, allowing only in his judgment sufficient space to clear his wagon from that of Dow, when his wheel struck the post, throwing out the plaintiff and causing his injuries; and that the forward wheel was found locked to the post inside by the hub, the hind wheels being in the travelled way, about two feet from the strip.</p> <p>The defendant introduced evidence tending to show that, at the time of the accident, Woodward was driving upon the sidewalk ; but this evidence was denied by the plaintiff, Dow, and Woodward.</p> <p>The following duly enacted ordinances of the city of Newton were in evidence:</p> <p>“ Sect. 18. No person shall ride or drive any horse, or cause the same to be ridden or driven, in any street, or over any bridge, at a pace faster than eight miles an hour. Every person having a wagon under his care shall, when passing with the same over any street or bridge, hold the reins of his horse or horses, or be in such position as to be able at all times to restrain and govern such horse or horses.</p> <p>“ Sect. 28. No person shall drive, wheel, or draw any vehicle, except a child’s carriage drawn by hand, or permit any horse, or any cattle, swine, or sheep, under his care, to go upon a sidewalk, or otherwise obstruct or injure any sidewalk. No person shall unnecessarily stop a vehicle, or place any other obstruction, on any street crossing, or suffer his vehicle to stand an unreasonable length of time in any street; nor shall any person drive a vehicle upon or over any hose-pipe lawfully placed in a street or in use at a fire.”</p> <p>Lawful penalties were attached to these ordinances.</p> <p>The plaintiff requested the court to instruct the jury as follows:</p> <p>“1. If the jury find that the post was an unreasonable obstruction to the way, and that the plaintiff, while a traveller in the exercise of due care, received his injuries through said obstruction, then the plaintiff is entitled to a verdict for damages.</p> <p>“ 2. If the travelled part of the way was not of sufficient width to allow the safe passage of Mr. Woodward’s wagon by Mr. Dow on the night in question without using a part of the sidewalk, and the night was so dark that the line of the sidewalk was not distinguishable in the exercise of reasonable care, it was not negligence on the part of Mr. Woodward, if he was otherwise in the exercise of due care, to have used a part of said sidewalk in attempting to drive by.”</p> <p>The judge refused to give said instructions, but among other things instructed the jury: “ If the post was in the highway, and made that highway dangerous, it was a defect for which the city of Newton may be held responsible; that if the post was between the carriageway and the sidewalk, it must have been in such a situation as to have made travel by carriages on the carriageway unsafe. ... If Woodward turned upon the sidewalk to go by, or if he was going at a speed which was in violation of the ordinances of the city of Newton, he was doing what he had no right to do, and it would be strong evidence that he was not exercising prudence and caution; the sidewalk was no place for a carriage. . . . But if between parts of a highway properly adapted to travel by carriages, and parts of the same highway properly adapted to travel on foot, there was an obstruction which caused carriage travel on the carriageway, or foot travel on the sidewalk, to be unsafe and dangerous, such an obstruction would be a defect for which the city of Newton would be responsible to a person who, travelling with due care, was injured thereby. The practical question of this case is this: Was the post, alleged to have been the cause of injury to plaintiff, in such near and immediate relation to the carriageway of Charles Street that the carriageway was unsafe. Whether or not that post obstructed safe travel by carriage on Charles Street will depend on the width of the carriageway, and how far it would serve the purpose of carriages in passing each other.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

At the hearing in the Superior Court, before Lathrop, J., the following facts appeared. On April 18, 1887, the judge, who tried the case without a jury, found for the plaintiff in the sum of $85, and on May 2, 1887, judgment was entered for the plaintiff for $85 and costs. On May 23, 1887, costs were taxed upon notice at $90.53; and the defendant appealed from the taxation of the costs.

<p>Eminent Domain— Waterworks — Damages — Evidence.</p> <p>A town, as authorized by special statute, proceeded to take, and did take, all the waters of a certain pond, with the land under the same, and all the waters in all the streams that flowed into or from the pond, for the purpose of supplying its inhabitants with pure water. At the trial of a petition by a mill-owner on a stream flowing from the pond for the assessment of damages to his water rights, evidence was admitted to prove the probable future consumption of water by the inhabitants of the town. Held, that the evidence was inadmissible.</p>

<p>Exceptions — Sale — Warranty — Consideration — Authority of A gent — Evidence.</p> <p>At the trial of an action for breach of a warranty in the sale of a horse by auction, inserted in a bill of sale executed in the name of the defendant, a horse dealer, by tiis bookkeeper, the bookkeeper’s authority to insert the warranty, as well as the fact of a sale by warranty, were in issue, and an advertisement of the sale stating that “ each and every horse will be warranted as represented,” published by the defendant and read by the'auctioneer at the time of the sale, was admitted in evidence, in connection with other evidence tending to show that the bookkeeper had general authority to make out bills of sale of horses sold, and to insert therein written warranties, if any in fact were given by the defendant. Held., that the advertisement was competent evidence as tending to show that the horse was sold with some kind of a warranty, and that therefore the bookkeeper was authorized to insert the written warranty.</p> <p>If, before the payment of the price at which a horse has been sold by auction, and before delivery, a question arises between the seller and the buyer as to the form of warranty to be given, and they agree that a particular form of words shall be written into the bill of sale as a part of the contract, and such are thereupon written into it, and the money is then paid and the horse delivered, the warranty rests upon a good consideration, and will bind the seller; otherwise, if the seller, after the delivery of the horse and payment of the price, voluntarily and without being bound by the contract to do so, inserts the warranty in the bill of sale.</p>

<p>Mortgage — Foreclosure—A dvertisement of Sale — Fraud — Costs.</p> <p>Notice, proper in form, of a sale to foreclose a mortgage under a power contained therein, duly published in a newspaper which technically answers the requirements of the mortgage, is sufficient as against a purchaser for value at the sale, who is a stranger to the mortgagee, receives his deed before any complaint is made to him, and has had no notice of a want of due care on the part of the seller.</p> <p>Land to be sold under a power of sale contained in a mortgage consisted of an unoccupied lot of moderate value in a city suburb, more likely to attract purchasers from the neighborhood than metropolitan capitalists. The mortgagee after requesting payment had caused advertisement of notice of the time and place of sale to be made in a suburban newspaper, with a small circulation, which was published nearest the land, and was read among the neighbors; and from nine to twelve persons were at the sale, of whom several were bidders. Held, that the advertisement of the sale was sufficient, and that the mortgagee was under no obligation to adjourn the sale.</p>

<p>Appeal, by certain heirs at laxv of Ivory G. Curtis, from a decree of the Probate Court, upon a petition by the administrator of bis estate for an order of distribution, that two shares of the estate be paid to the guardian of Henry Curtis, who was the only child of Henry G. Curtis, a deceased son of the intestate, and who subsequently became the adopted child of the intestate and his wife. Hearing before Meld, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>The following order was passed by the House of Representatives on April 19, 1889, and thereupon transmitted to the Justices of the Supreme Judicial Court, who, on May 4, 1889, returned the answer which is subjoined.</p> <p>Ordered, That the opinion of “the Justices of the Supreme Judicial Court be required upon the following important questions of law, namely:</p> <p>First. What is the meaning of the words, “ or if such child has been otherwise furnished for a like period of time with the means of education,” as they are used in section one of chapter forty-seven of the Public Statutes, — and especially, are the words quoted to be construed to mean that such education shall include the branches required to be taught in the public schools by section one of chapter forty-four of the Public Statutes, and chapter three hundred and thirty-two of the Acts of the year eighteen hundred and eighty-five ?</p> <p>Second. Is the instruction given in a private day school, not approved by the school committee of a city or town in which a person resides, who has under his control a child between the ages of eight and fourteen years, “ the means of education ” within the meaning of section one of said chapter forty-seven ?</p> <p>Third. Do the words, “ when the teaching therein is in the English language,” as they occur in section two of said chapter forty-seven, mean that all the teaching in such school shall be in the English language, or only the teaching in such branches as are required by law ?</p> <p>And be it further ordered, that the Justices of the Supreme Judicial Court be informed that the foregoing questions are propounded with a view to further legislation on the subject matter of the statutes therein referred to.</p>